2010 Gohap 18926 Compensation (as referred to in this paragraph)

○○ Company

○ ○

October 7, 2011

1. The defendant shall pay to the plaintiff 508, 377, 146 won with 5% interest per annum from April 9, 201 to October 7, 2011, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall serve the plaintiff 858, 472, 496 won and a copy of the application for modification of the lawsuit in this case.

The amount of money shall be paid at the rate of 20% per annum from the day of full payment to the day of full payment.

1. Basic facts

A. On April 2009, the Plaintiff entered into a contract with the △△ Construction Co., Ltd. for the instant construction work among the construction works for the new apartment of the Dobong-dong apartment (hereinafter “instant construction work”). Around that time, the Plaintiff entered into a contract with the Defendant for the supply of cement bricks and block necessary for the instant construction work (hereinafter “the instant supply system”).

B. The Plaintiff, with cement bricks and blocks supplied by the Defendant from January 1, 2010 to April 2010, completed the instant construction work by executing the instant construction work by executing the community room, stample, sti, sti, underground floor sculptures, rooftop becher, etc. from the instant construction site. From May 14, 2010 to the underground floor level of the instant construction site, there was a defect such as rupture rupture on cement bricks and scurging.

C. From June 2010, the Plaintiff removed and reconstructed cement bricks from which rupture was generated, and the Plaintiff spent a total of KRW 564,863,496, as indicated in the column of “cost of reconstruction expense” in the attached Table.

[Ground of Recognition] A without dispute, entry of Gap 20, 21, 23, 24, 25, 27 through 30, and 32 (including each number), Gap 35-1 through 24, Gap 35-1 and 24, and the purport of the whole pleadings

2. Determination as to the cause of action

A. In order to impose liability on the seller for the so-called "explic damage caused to the buyer's body and property due to the defect in the object of sale and purchase caused by incomplete performance, not only the breach of duty which did not deliver the defective object, but also the seller should be responsible for the breach of duty.

Comprehensively taking account of the written evidence Nos. 14, 31, and 32, and the overall purport of testimony and pleadings by the witness No. 100, the defendant produced cement bricks in combination with cement (construction waste interim disposal) supplied by the company ○○○ (hereinafter “non-party company”) around November 2009. In the process of interim disposal of renewable sand, the non-party company added non-party company's mixing of non-nets and added materials (fire-proof bricks) in the process of interim disposal of reproductive sand, and as a result, it can be acknowledged that the defects of cement walls made by the defendant were discovered, such as heavy rupture, upon the lapse of three months from the date of manufacturing.

In addition to the above facts, the defendant should supply cement brick without any defects to the plaintiff, but the defendant supplied cement bricks manufactured by a refrating sand mixed with non-nets, so cement bricks were cut and frated, and the defendant was unable to fully perform his/her obligations under the supply contract of this case due to the reasons attributable to the defendant, and thus, barring any special circumstances, the defendant is liable to compensate the plaintiff for damages suffered by the plaintiff due to incomplete performance.

(b) Scope of damages;

There is no dispute between the parties that the plaintiff was aware that cement brick was supplied by the defendant for the purpose of using it in the instant construction, and as seen earlier, the plaintiff removed the defective cement brick and reconstructed. Thus, the plaintiff suffered damages equivalent to the cost required for the removal of the defective cement brick and reconstruction.

C. Limitation on liability for damages

In case where the obligor is liable for damages due to the obligor's non-performance of obligation against the obligee, if the obligee is negligent or it is necessary to ensure the fairness of the burden of damages, the obligor's liability may be limited.

In full view of the testimony and the purport of the entire pleadings by the witness ○○○, △△ Construction Co., Ltd., in consideration of the following: (a) the compressed intensity and absorption rate of cement bricks voluntarily selected by the Defendant among cement bricks produced by the Defendant; and (b) the Defendant’s liability for damages against the Plaintiff should be limited to 90% of the amount of damages in consideration of the fact that △△ Construction Co., Ltd. or the Plaintiff could have discovered the above cement bricks through the inspection, would have prevented the occurrence of damages or the expansion of damages if the said cement bricks were discovered; and (c) the Defendant claimed that the Plaintiff requested the Defendant to supply the cement bricks and blocks with the knowledge of the defects in cement bricks by the Defendant, but there is no evidence to acknowledge them).

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 508, 377, 146 won ( = 564, 863, 496 won x 0.9) and damages for delay calculated at the rate of 20% per annum under the Civil Act from April 9, 2011 until October 7, 201, the date following the day when the copy of the application for modification of the lawsuit of this case sought by the plaintiff was served on the defendant, to the defendant, for the existence or scope of the obligation to pay the damages for delay calculated at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-il

Judges Park Sung-sung

Judges 00 Efficacy