2015 Ghana 50315 Damages

Gangwon ○

Attorney Go Chang-chul, Counsel for the defendant-appellant

1. Construction works:

Representative President Park ○○

Attorney Song-ho et al., Counsel for the defendant

Attorney Kang Han-chul, Counsel for defendant

2. Seoul Special Metropolitan City;

Representative City Round

Seoul High Court Decision 200

October 6, 2015

October 13, 2015

1. Defendant A Corporation shall pay the Plaintiff 7,50,000 won with 5% interest per annum from February 27, 2015 to October 13, 2015, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendant Gap Corporation and the defendant Seoul Special Metropolitan City's claims are respectively filed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant A Corporation shall be 25%, and the remainder between Defendant A and Defendant Seoul Special Metropolitan City shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

The defendants jointly pay to the plaintiff 10,000,000 won with 20% interest per annum from the day after the delivery of the copy of the complaint of this case to the day of complete payment.

1. Basic facts

(a) Relationship between the Parties

1) The Plaintiff was designated as an intermediary wholesaler from the Seopo-si Fisheries Cooperatives, and operated a intermediary wholesale business from November 30, 1994, and sold fishery products purchased by auction to the wholesale market, such as the Gana-dong Agricultural and Fishery Products Market.

2) Pursuant to Article 17(1) of the former Act on Distribution and Price Stabilization of Agricultural and Fishery Products (amended by Act No. 12509, Mar. 24, 2014; hereinafter referred to as the “Distribution and Marketing Act”), Defendant Seoul Special Metropolitan City (hereinafter referred to as the “SP”) established a wholesale market, which is the wholesale market, pursuant to Article 17(1) of the said Act, and Defendant A (hereinafter referred to as the “SP”) designated as the manager of the said market pursuant to Article 21 of the said Act to take charge of the management of the market.

3) The Defendant Corporation is a corporation established pursuant to the Local Public Enterprises Act, the Seoul Special Metropolitan City Ordinance, and was entrusted with the remaining management affairs with respect to the Gamdong Wholesale Market established pursuant to Article 17 of the Agricultural and Fishery Products Distribution Act and the Gangnam Agricultural and Fishery Products Wholesale Market in Seoul Special Metropolitan City except as otherwise provided in each subparagraph of Article 88

B. Circumstances on the disposition of restriction on shipment of fishery products by Defendant Corporation

1) 원고는 2014. 3. 19 . 새벽 서귀포수산업협동조합 공판장에서 도미(뱅꼬) 3상자( 1 상자당 도미 15마리) 를 경매로 매수하여 , 같은 날 위 도미 3상자를 가락농수산물도매 시장으로 출하하였다.

2) On March 20, 2014, A, an intermediary wholesaler affiliated with the Gamdong Wholesale Market, purchased it by auction, and sold the said three boxes to B, an intermediary wholesaler affiliated with the Gamdong Wholesale Market on the same day, and B, to C, one of them.

3) On June 3, 2014, pursuant to Article 22 of the Food Sanitation Act and Article 20 of the Enforcement Rule of the same Act, Defendant Seoul Special Metropolitan City: (a) collected 16 males, including Domi, from C to conduct an inspection on the safety of fishery products by requesting the head of the Seoul Special Metropolitan City Health and Environment Research Institute; (b) on June 16, 2014, Defendant Corporation, etc. to conduct an inspection on the safety of fishery products; (c) on June 3, 2014, at least the base value in Domi (hereinafter referred to as “Domi” in this case) collected from C, which was determined as inappropriate after the date of inspection (hereinafter referred to as “instant notification”; (d) on the distribution channel - the date of distribution inspection - the fishing vessel’s final inspection - the date of collection and sale - the entire quantity of the fishery products - the date of collection and sale - - 13 - 4 - from each intermediate wholesaler (hereinafter referred to as “the last intermediary wholesaler”).

4) Upon receipt of the instant notice, on June 20, 2014, the Defendant Corporation sent the instant Domi to the Plaintiff and sold it to A in the Sim Agricultural and Fishery Products Wholesale Market, and thereafter, the instant Domi was sold to C via B. The instant Domi was subject to one month (hereinafter “instant disposition”) pursuant to Article 38-2(2) of the Distribution of Agricultural and Fishery Products Act and Article 35-2(2)1 of the Enforcement Rule of the same Act (hereinafter “instant disposition”) pursuant to Article 35-2(2)1 of the Enforcement Rule of the same Act, and notified the relevant agencies of the instant disposition to ensure that the Plaintiff’s fishery products are not distributed within the period of shipment restriction.

C. Grounds for revocation of the instant disposition

1) The Plaintiff filed a lawsuit against the Defendant Corporation seeking the revocation of the instant disposition (Seoul Administrative Court 2014Guhap61620), and filed an application for the suspension of execution (2014Guhap10513), and received a favorable judgment from the said court on July 7, 2014, that the instant disposition was unlawful on December 12, 2014.

2) On July 8, 2014, the Defendant Corporation notified the Seoul Special Metropolitan City Mayor, the Plaintiff, etc. of the termination of the shipment restriction from July 8, 2014 to July 20, 2014 upon the administrative court’s decision to suspend the execution of the instant disposition.

D. The sum of purchase in the year 2013 from Jun. 21, 2014 to July 7, 2014 by the Plaintiff was subject to the shipment restriction disposition is KRW 36,73,790 (number of 8 business days), as listed in the following table, and the aggregate of purchase in the year 2014 is KRW 16,567,490 (number of 14 business days) as listed in the following table, and the difference is KRW 20,16,300 (=36,73,790), - 16,567,490).

A person shall be appointed.

[Basis] Evidence Nos. 1, 2, 3, and 4-1, 2, 5-2, 3, and 7-1, 2, 3, and 7-2, Eul's evidence Nos. 1 through 4, Eul's evidence Nos. 1 through 5, and the purport of the whole pleadings.

2. Determination on the main safety defense of Defendant Corporation

The defendant corporation shall have jurisdiction over the court in the special jurisdiction of the place of tort and the place of performance in the claim for damages based on illegal acts, on the ground that the lawsuit of this case was filed in violation of jurisdiction. However, the above lawsuit can also be brought to the court in the place of residence or performance as a lawsuit concerning property rights, and unless there is any specific agreement, the damage compensation liability due to illegal acts should be paid at the address of the creditor. Thus, the lawsuit of this case claiming for damages on the ground of the defendants' illegal acts has jurisdiction over the court in the place of the domicile of the creditor. Thus, the above defendant's assertion is without merit.

3. Determination as to the claim against the defendant Corporation

A. According to Article 38-2 of the Agricultural and Fishery Products Quality Control Act, a person who sets up a wholesale market shall conduct a safety inspection of agricultural and fishery products brought into the wholesale market in excess of the permissible residual amounts of harmful substances under Article 61 of the Agricultural and Fishery Products Quality Control Act (Paragraph 1), and may restrict shipment to the wholesale market concerned within the extent of one year to the shipper of the agricultural and fishery products which fall short of the standards as a result of the safety inspection (Paragraph 2). Furthermore, matters necessary for the standards for conducting safety inspections under paragraph 1, standards for restrictions on shipment under paragraph 2, and procedures for conducting safety inspections under paragraph 1, and the Ordinance of the Ministry of Oceans and Fisheries (Paragraph 3) shall be prescribed by Ordinance of the Ministry of Agriculture and Forestry or Ordinance of the Ministry of Oceans and Fisheries (Article 35-2(1) [Attachment 1] [Attachment 1] of the Enforcement Rule of the same Act, and Article 35-2(2) [Attachment 3] of the Agricultural and Fishery Products Quality Control Act provides that the shipper who falls short of the standards shall be combined with Article 3(3) of the Act.

Meanwhile, according to the attached Table 1, ① with respect to the quantity of samples collected for conducting a safety inspection, heavy fish species (50g or more than 500g and less than 1kg) are collected inside or outside 3 g or 2 g, 5 g or 2 g in or outside, and 2-g in or outside, 3 g or 2-g in or outside, and g in or outside 2-g in or outside, and ② the sample collection shall be conducted before the auction is conducted at a wholesale market, but if necessary, it may be conducted at the stage before it is traded at retail, and ③ the same quantity is the same as the date of shipment at the time of the sample collection. ④ On the other hand, the safety inspection of agricultural and fishery products shall be conducted in accordance with the method of inspection of 'officials such as food under Article 14 of the Food Sanitation Act'.

B. As to the instant case, it appears to the purport of ensuring the scientific accuracy of the result of the safety inspection that sets the quantity of sample collection by using the same quantity as the shipping date, shipper and item B from the [Attachment Table 1]. The Seoul Special Metropolitan City collects only 1 gg or a Do, which seems to be less than that, and the time of sample collection in the wholesale market can be deemed to be aimed at ensuring the safety of the prosecutor by making the maximum difference between the possibility of pollution in the distribution process and the possibility of contamination in the distribution process. However, Seoul Special Metropolitan City has the duty to notify the Plaintiff of the result of the instant disposition to collect samples from the Seoul Special Metropolitan City on June 3, 2014, which is not only the duty to collect samples from retail, but also the duty to collect samples from the Seoul Special Metropolitan City on the grounds that the Seoul Special Metropolitan City on the basis of the safety inspection method, which is not the duty to collect samples from the pre-sale stage.

(c) Scope of damages;

In light of the following circumstances: (a) the difference of KRW 20,166,300 in the purchase amount compared with the previous year during the period during which the Plaintiff was restricted from actual shipment due to the instant disposition; (b) the Plaintiff appears to have damaged the Plaintiff’s credit by knowing the content of the instant disposition to the relevant agencies; and (c) the Plaintiff expressed its intent not to claim for the passive damages suffered due to the said tort as above by the Defendant Corporation on the ground that it was difficult to prove it; and (d) the Plaintiff expressed its intention not to claim for the amount of consolation money as KRW 7.5 million.

D. Sub-committee

Therefore, the Plaintiff filed a claim against the Defendant Corporation for consolation money of KRW 10 million and damages for delay thereof. As to consolation money for credit damage, etc. suffered from the instant disposition, the Defendant Corporation is obligated to pay to the Plaintiff damages for delay calculated at the rate of KRW 7.5 million per annum from February 27, 2015 to October 13, 2015, the date following the delivery date of a copy of the instant complaint, which is the day of the instant judgment, to October 13, 2015, which is the day of the instant judgment, to the day of full payment, 5% per annum as stipulated in the Civil Act, and 15% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment. Accordingly, the Plaintiff’s assertion is reasonable within the scope of recognition, and the remainder is without merit.

4. Determination as to the claim against Defendant Seoul Special Metropolitan City

A. The plaintiff's assertion

The plaintiff asserts that the defendant Seoul Special Metropolitan City made the notification of this case to the defendant Corporation and made the disposition of this case in accordance with the Agricultural and Fishery Marketing Act, and therefore, the defendant Corporation is responsible for tort by hostile the disposition of this case.

B. Determination

1) According to Article 22(1)2 of the Food Sanitation Act, the Minister of Food and Drug Safety (including the head of an agency under his/her jurisdiction prescribed by Presidential Decree; hereafter the same shall apply in this Article), a Mayor/Do Governor, or the head of a Si/Gun/Gu may, if necessary, have a relevant public official enter a place of business (including an office, warehouse, factory, storage place, selling place, and other similar places) to inspect foods for sale or business purposes, or business facilities for business, and take measures, such as collecting the minimum quantity of foods, etc. necessary for inspection without compensation.

According to Article 20 and attached Table 8 of the Enforcement Rule of the same Act, the subject matters of food, etc. that can be collected free of charge pursuant to Article 22(1)2(b) of the same Act and the quantity thereof are as shown in attached Table 8, and the fishery products can be collected 0.3-4 km. Unlike the Enforcement Rule of the Agricultural and Fishery Products Distribution Act, there is no provision restricting the timing of collecting samples, such as attached Table 1.

2) As to whether Defendant Seoul Special Metropolitan City issued the instant notice to Defendant Corporation, there is no evidence to acknowledge that the instant notice included the content of Defendant Seoul Special Metropolitan City ordering Defendant Corporation to take the instant disposition. Rather, according to the above facts, it can be easily known that Defendant Seoul Special Metropolitan City did not remove or inspect this case under the Distribution of Agricultural and Fishery Products Act. Accordingly, Defendant Seoul Special Metropolitan City was merely a notification that it was inappropriate to collect or inspect the instant Do road under the Food and Fishery Products Act. Although Defendant Seoul Special Metropolitan City issued the instant notice to Defendant Corporation, it did not inform Defendant Corporation that the instant notice was not the result of inspection under the Distribution of Agricultural and Fishery Products Act, but merely was the result of inspection under the Food and Fishery Products Act, it is difficult to recognize Defendant Seoul Special Metropolitan City’s liability for tort against the instant disposition. Accordingly, this part of the Plaintiff’s assertion is without merit.

5. Conclusion

Therefore, the plaintiff's claim against the defendant Corporation is accepted within the above scope of recognition, and the remaining claims are dismissed as it is without merit. The plaintiff's request against the defendant Seoul Special Metropolitan City is dismissed as it is without merit.

The Republic of Korea