200 Single 5053046 Agreements

A

Law Firm Sung, Attorney Lee Jong-ok, Counsel for the plaintiff-appellant

Attorney Lee Jae-chul et al., Counsel for the plaintiff

1. B

2. C.

3. D;

[Defendant-Appellant] Park Young-young, Counsel for defendant-appellant

[Judgment of the court below]

November 9, 2020

January 11, 2021

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendants jointly and severally pay to the plaintiff 39,000,000 won with 12% interest per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. (1) On May 18, 2018, the Plaintiff supplied the Plaintiff with Defendant B, and Defendant BVR game equipment and systems, etc. (hereinafter “instant equipment”) and entered into an agency contract with which the Plaintiff conducts business by using them. On the same day, the Plaintiff purchased the instant equipment from Defendant B in the purchase price of KRW 60 million (excluding value-added tax) for the said business (hereinafter “instant sales contract”), and the parts related to the instant case are as follows.

Article 4 (Effect and Scope of Contract) The terms of this supply contract shall apply from the time of conclusion of the contract to the time of completion of the period for guaranteeing the free defects of the above goods, and the attached detailed statement of supply of the system shall also have the same effect as this contract.Article 6 (Period of Payment) ① the remaining period of June 20, 2018, and shall be deposited in cash in full at least one week prior to the final payment period. (In the event the payment period under Article 6 is delayed, Defendant B shall pay to the Plaintiff a delayed compensation equivalent to 15% of the contract amount per day (including V.A.T) per delay.Article 10 (Examination) 1) is confirmed to be in accordance with the terms and conditions of examination agreed in advance by Defendant B and the Plaintiff within one week after completion of the delivery.Article 17 (Special Clause) 16)

2) The Plaintiff remitted KRW 10 million to each Defendant B’s account on May 23, 2018, and KRW 6,237,000, out of the price of the instant sales contract, to each Defendant’s account on June 27, 2018.

B. The Plaintiff and Defendant B agreed to supply the instant devices by leasing them from E Co., Ltd. (hereinafter “E”), and on July 3, 2018, the Plaintiff leased the instant devices from E and paid KRW 50 million to E on the same day.

C. On May 29, 2019, the Plaintiff, while running a business using the instant devices, filed a report on discontinuance of business on May 29, 2019.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 4, the purport of whole pleadings

2. The assertion and judgment

A. Summary of the parties' assertion

1) Plaintiff

According to Article 17(6) of the instant sales contract, if the Plaintiff closes its business within 12 months through sales reduction or legal basis data within 1 year, the Defendant B shall return 65% of the total equipment price to the Plaintiff. However, as the “certificate of replacement of equipment” written by the Defendant, while replacing equipment, signed and sealed not only the Defendant B, but also the Defendant C and D as the supplier, the Defendants are liable to return the equipment price.

However, the Plaintiff discontinued its business on May 19, 2018 on the ground that the Plaintiff was making a sales low while running its business upon delivery of the instant devices.

Therefore, the Defendants jointly and severally return to the Plaintiff KRW 39 million (=60 million x 65%).

2) The Defendants

Since the contract of this case was concluded between the plaintiff and the defendant B, the defendant C and D do not bear any responsibility for the contract.

In addition, the plaintiff is not liable to the defendant B because he did not comply with the business instruction and guidance of the defendant B and reached the closure of business.

In addition, Article 17(6) of the instant sales contract provides that where the Plaintiff closed his/her business within one year from the date of conclusion of the instant sales contract due to decline in sales, etc., Defendant B would refund the amount equivalent to 65% of the price of the instant equipment to the Plaintiff. Since the Plaintiff closed his/her business on May 29, 2019, which was one year from May 18, 2018, the date of conclusion of the instant sales contract, Defendant B did not bear any obligation under the said provision.

B. Determination

1) First, Defendant C and D are liable for the obligations under the instant sales contract.

According to the evidence Nos. 3 and 5, Defendant D is named as CEO of the company's "F operated by Defendant B", Defendant C uses the name of the vice president of the above company, and Defendant C and D, at the time of exchange of equipment made on February 14, 2019, signed as a practical person in the certificate of supply of equipment.

However, as shown in the above facts, the sales contract of this case was concluded between the plaintiff and the defendant B, and only the circumstances or other evidence submitted by the plaintiff cannot be viewed as having the status as a party to the sales contract of this case or as having the actual party responsible for the contract.

Therefore, the claim against Defendant C and D is without merit without further review.

2) We examine the claim against Defendant B as follows.

In light of the various circumstances revealed in the above facts, it is reasonable to understand that Article 17(6) of the sales contract of this case is to refund 65% of the price of the instant apparatus to the Plaintiff in the event that the Plaintiff closes its business within 12 months from the date on which the Plaintiff was supplied with the instant apparatus within one year from the date on which the Plaintiff was supplied with the instant apparatus (if the date on which the obligation occurred, as alleged by Defendant B, the date on which the instant sales contract was concluded, is calculated as of the date on which the Plaintiff was unable to engage in business because it was unable to deliver the instant apparatus, and thus, the period of 12 months starting from the date on which the sales did not occur, which contradicts the part of the price of the instant apparatus when the Plaintiff discontinued its business on the grounds of low sales). Accordingly, in the instant case where the Plaintiff discontinued its business on May 29, 2019, if it is recognized that the cause under Article 17(6) of the sales contract of this case occurred, the Defendant B is obligated to return the instant apparatus to the Plaintiff.

However, the above provision is interpreted to the effect that, in the event that the Plaintiff’s business is discontinued due to a decline in sales or other causes corresponding thereto while running the VR business, Defendant B shall return 65% of the purchase price of the instant apparatus to the Plaintiff for compensating for the Plaintiff’s loss. Therefore, it is reasonable to understand that “data based on law” under the above provision is materials to recognize that sales have decreased to the extent that the Plaintiff could not operate the business using the instant apparatus.

However, it is difficult to believe that Gap evidence No. 11 and witness G testimony, consistent with the plaintiff's assertion that the plaintiff discontinued the business using the instant devices due to the decline in sales, are in accord with the plaintiff's assertion, and there is no evidence to acknowledge that the plaintiff discontinued the business due to the decline in sales.

Therefore, the plaintiff's assertion is without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges, judicial officers and employees;