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(영문) 대구고등법원 2018.08.29 2018나21792
손해배상(기)
Text

1. Of the judgment of the court of first instance, the part against the Plaintiff corresponding to the following additional payment order shall be revoked.

Reasons

1. The court's explanation on this part of the basic facts is the same as the part of "1. Recognition" in the judgment of the court of first instance (from No. 14 to No. 6). Thus, the relevant part shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on this safety defense

A. According to Article 1.18 of the General Terms and Conditions of Contracts among the instant contracts, the instant dispute shall be settled by arbitration by an arbitral institution under the Arbitration Act.

Therefore, the Plaintiff’s filing of the instant lawsuit is unlawful.

B. According to the evidence No. 1 of this case’s general terms of contract No. 1, No. 18.1 of this case’s general terms of contract No. 1, “A dispute concerning factual issues arising out of the contract shall be decided by the Plaintiff, and if the Defendant raised an objection against the Plaintiff’s decision and the parties are unable to reach agreement, the dispute shall be resolved in accordance with the following subparagraphs: (i) the arbitration by the arbitration agency under the Arbitration Act of the Republic of Korea, and (ii) the court’s

In light of the language and text of the foregoing provision, if agreement between the plaintiff and the defendant is not reached, the dispute shall be resolved by arbitration proceedings or by a court ruling, and if either party selects arbitration procedures, the other party is not obliged to comply with it.

It is reasonable to regard it as a selective provision of arbitration as presenting arbitration or ruling by way of dispute resolution.

Therefore, we cannot accept the defendant's defense on the merits.

3. Occurrence of liability for damages;

A. 1) The contract of this case is a contract with the purport that the design production performance test installation of the goods of this case is awarded to the defendant en bloc. Article 2.05.01 of the contract of this case is "the supplier" and "the contract of this case is effective.

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