2017Da15041 Return of subsidy

Tae Jink Co., Ltd.

A

Seoul Southern District Court Decision 2016Na4476 Decided February 16, 2017

August 29, 2017

The part of the judgment below against the defendant (appointed party) shall be reversed, and that part of the case shall be remanded to the Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below cited the judgment of the court of first instance in accordance with the instant utilization agreement.

The Plaintiff intended to provide credit card terminals, etc. to the designated parties B (hereinafter referred to as the “designated sperm”) is a premise that the designated parties would achieve 20,000 cases of monthly credit approval for the period of 36 months, which is the agreed period. It is reasonable to view that the instant utilization agreement was terminated at the expiration of the period as it is difficult for the designated parties not only failed to achieve the monthly credit approval period but also to achieve 720,000 cases of cumulative credit approval within the future. Thus, the Defendant (the appointed parties, hereinafter referred to as the “Defendant”) jointly and severally, who is the designated parties and their joint and several sureties, is liable to compensate the Plaintiff for damages arising from the violation of the instant use agreement.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In order to recognize the liability for damages to the Selection and the Defendant, first of all, clarify whether the liability for damages was based on tort, default, or any other cause of claim, and if the liability was caused by nonperformance, specifically determine the content of the principal obligation to be borne by the Selection pursuant to the instant utilization agreement, and what constitutes the incidental obligation which makes it impossible for the Selection to perform as good in the content of the obligation at least in the event of nonperformance, and then examine whether the Selection may be deemed to have breached such obligation.

· should have been determined.

Nevertheless, the lower court recognized the selector and the Defendant’s liability for damages solely on the ground that the selector did not reach the aforementioned deliberation and determination and did not achieve a certain number of credit approvals, and it was impossible to achieve it for a considerable period in the future.

B. Even if the court below determined that the Selection and the defendant are liable for damages on the ground that the Selection are liable for damages on the ground that he violated the above obligation, as the principal obligation or incidental obligation under the instant utilization agreement, the representative bears the duty to achieve a certain number of credit approvals against the plaintiff, and is not acceptable for the following reasons.

According to the reasoning of the lower judgment and evidence duly admitted, the Plaintiff is a company established for the purpose of wholesale and retail business of credit card terminals, etc. and their ancillary business, and operated a business in the form of receiving part of the commission incurred in settling credit cards using the above equipment, etc. for the agreed period instead of supplying consumable goods, such as the horse terminal, etc., to distributors of credit cards. ② The instant agreement on the use of credit cards shall provide the Plaintiff with subsidies of 30,000,000 won (excluding value-added tax) and goods necessary for the use of the bareboat service, such as credit card terminals, etc. (VN), and if the number of credit approvals falls short of 720,000,000 items, the agreement shall be automatically extended (Articles 2 and 3), and if the Plaintiff provided 200,000 credit card stores or 20,000 items, the number of credit card dealers or 20,000,0000 won shall be subject to the Plaintiff’s change of the number of credit cards or 30, etc.

In light of all the circumstances, including the language and content of the instant use agreement as revealed in the above facts, the motive and background of the agreement, and the purpose of the agreement to achieve, it cannot be deemed that the designated person is obligated to achieve a certain number of credit approvals to the Plaintiff pursuant to the instant use agreement, and as long as the designated person did not violate the prohibition obligation under Articles 4 and 8 of the instant use agreement, such as the use of credit card terminals, etc. by another company, even if the designated person failed to achieve the above credit approval number, it does not constitute a violation of the instant use agreement, and it shall not be deemed that the designated person and the Defendant are not liable for compensation even if the Plaintiff suffered losses due to the lack of the number of credit approvals.

C. Nevertheless, as seen earlier, the lower court recognized the Defendant’s liability for damages. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation of a contract, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part against the Defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-sik, Counsel for the defendant

Justices Park Young-young

Justices Kim Chang-tae, Counsel for the defendant

A person shall be appointed.

A person shall be appointed.