Sam Young General Machinery Co., Ltd. (Law Firm Jeong, Attorney Kang Shin-chul, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Attorney Han Sung-young, Counsel for defendant-Counterclaim)

July 11, 2012

1. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 20,383,122 won with interest of 5% per annum from April 17, 2012 to August 1, 2012, and 20% per annum from the next day to the day of full payment.

2. The plaintiff (the defendant in the main lawsuit)'s remaining main claim and the defendant (the plaintiff in the counterclaim)'s counterclaim are dismissed, respectively.

3. Of the costs of lawsuit, 1/10 of the cost of lawsuit is assessed against the Plaintiff (Counterclaim Defendant) and the remainder is assessed against the Defendant (Counterclaim Plaintiff). The remainder is assessed against the Defendant (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter the Defendant) pays to the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) 23,110,000 won with interest of 20% per annum from the day following the delivery of the written application for modification of claim and cause of this case to the day of complete payment.

Counterclaim: The plaintiff shall pay to the defendant 7 million won with 5% interest per annum from May 26, 2011 to the day of complete payment.

1. Basic facts

A. On November 2, 2010 between the Plaintiff and the Plaintiff, the Defendant entered into a contract for the production of gold set at KRW 70,00,000,00 in cash, the remainder of KRW 70,000,000, and the remainder of KRW 70,000,000,00 in cash, each of which is to be paid after completion of trial operation and delivery of defective bonds (see, e.g., evidence 1; hereinafter the instant contract) and KRW 3/8 of FINS DIE (hereinafter the instant gold set at KRW 12).

B. On November 30, 2010, the Plaintiff delivered to the Defendant a promissory note with a face value of 53,900,000 won at par value, the Industrial Bank of Korea, the due date, and the due date on March 31, 201, and transferred KRW 23,10,000 in cash on December 2, 2010.

C. On April 18, 201, the Plaintiff received the instant gold punishment from the Defendant, but delayed production of the instant gold punishment No. 1, on May 4, 2011, the Plaintiff notified the Defendant of the rescission of the contract regarding the instant gold punishment No. 1 among the instant contract. Accordingly, the Defendant intended to deliver the instant gold punishment No. 1 to the Plaintiff on May 24, 201, after notifying the Defendant that the instant gold punishment was completed at least 70% on May 9, 2011, but the Plaintiff refused to accept the instant gold punishment as it was an semi-finished product not a finished product.

[Ground of recognition] Gap evidence 3 to 7 (including paper numbers), Gap evidence 9-1, Eul evidence 1 to 4 (including paper numbers), Eul evidence 6-1 and the purport of the whole pleadings

2. The assertion;

As a claim in this case, the Plaintiff is liable to return KRW 20,50,000 (including additional tax) calculated by deducting KRW 49,500,000 (including additional tax) from the supply price of KRW 20,50,000 for the gold penalty in this case, as long as the contract on the gold penalty in this case was rescinded, as the contract on the gold penalty in this case’s main claim in this case’s KRW 2,610,000 as a result of the delay in the supply of the gold penalty in this case’s 2,610,000 [4,00,000 x 1/1,000 x 58 days (including March 16, 201)] as compensation for delay.

As a counterclaim of this case, the defendant asserts that the plaintiff's declaration of termination of the contract for the gold-type 1 of this case is illegal, and thus, it is not effective since the plaintiff's declaration of termination is invalid. Rather, since the production of gold-type 1 of this case was completed and supplied to the plaintiff on May 25, 201, the plaintiff is obliged to pay the remaining remainder of KRW 70,000 (Additional Tax separately) under the contract of this case to the defendant.

3. Determination

A. Determination on a claim for restitution of unjust enrichment and a counterclaim in the principal lawsuit

(1) Whether the rescission of the contract for the gold punishment of this case 1

Considering the overall purport of each statement and pleading, Gap 3,8,10,14 (including paper numbers), the plaintiff was planned to produce the freezing parts for the vehicle using each of the gold forms of this case and deliver them to the multi-picker Co., Ltd., but upon delay in the supply of the gold type of this case, the plaintiff notified the defendant of the cancellation of the contract for the gold type of this case on May 4, 201, and on May 6, 201, the plaintiff entered into a contract with the non-party 2 to supply the same gold type of 95,00,000 won as the gold type of this case from the non-party 2 on June 18, 201, and paid the price to the non-party 2 at that time. According to Article 6 of the contract of this case, the plaintiff could not be found to have completed the contract of this case within the period of 10%, and the plaintiff could not be found to have completed the contract of this case as well as to have completed the contract of this case 10%.

As to this, the Defendant: “201.3.15” which is the delivery date of the instant promissory note at the time of the instant contract is difficult to conclude the said contract; the Plaintiff’s expression of intent on November 2, 2010, under the condition that the down payment shall be paid in cash; KRW 23,100,00 among the down payment shall be paid on December 2, 201; the remainder of KRW 53,90,00 shall not be cash, but shall be delivered in advance, and the Defendant shall not be deemed to have refused to start the payment of the down payment of the said promissory note at the time of the instant contract; KRW 20,000,000,000,000 for the total amount of KRW 10,000,000,000,000,000 for 20,000,0000,000,000 won, as otherwise alleged by the Defendant.

In other words, the defendant asserts that there is no fact that the plaintiff notified the defendant to cancel the contract with a reasonable period of time, and thus, the plaintiff's expression of intent to cancel the contract is unlawful. However, the above peremptory notice of performance is only necessary to exercise the statutory right to cancel the contract under the Civil Act, and if the plaintiff exercises the right to cancel the contract based on the occurrence of the grounds for cancellation as stipulated in the contract between the parties, it may be cancelled as stipulated in the contract. As already examined, the plaintiff has already exercised the right to cancel the contract based on the grounds for cancellation as stipulated in Article 6 of the contract of this case. The method of rescission takes effect by notifying the other party of the fact that one party has notified the other party of

(2) Scope of unjust enrichment

Meanwhile, at the time of the contract of this case, the plaintiff and the defendant did not clearly specify the price for the gold punishment of this case 1 and the price for the gold punishment of this case 2. However, according to the estimate prepared by the defendant before the contract of this case was concluded, the price for the gold punishment of this case 125,30,000 won, and the price for the gold punishment of this case 59,800,000 won for each of the above gold punishment of this case 140,000 won for each of the above gold punishment of this case 140,770,394 (140,000 x 140,000 x 125,300,000 won x 105,0050 won x 209,5010,0000 won x 140,500,000 won x 205,005 won x 1405,005 won.

Therefore, as long as the contract on the gold-type portion of this case was lawfully rescinded in accordance with the Plaintiff’s declaration of intent, the Defendant is obligated to return KRW 20,247,434, which was obtained by deducting the agreed supply price of the gold-type KRW 49,752,56 (the agreed supply price of KRW 45,229,60 + KRW 10% of the additional tax + KRW 10% of the additional tax, and KRW 434 from the total amount of KRW 70,00,00 which was received as down payment to the Plaintiff.

B. Determination on the claim for liquidated damages among the main claim

As seen earlier, it is reasonable to view that the delivery date of the instant two gold papers has been extended by one month, since the Plaintiff paid the down payment stipulated in the instant contract at December 2, 2010 for the period of one month from the date of the said contract. Accordingly, the Defendant should have delivered the instant two gold papers by April 15, 201, which was to be supplied on April 18, 201, after three days from the delivery date, according to the Plaintiff’s evidence No. 3 (contract) x KRW 1,000 per day when the delivery date was not completed within the delivery date x KRW 260 per day, KRW 1,00 per day when the Plaintiff paid the down payment stipulated in the instant contract for the instant case at December 2, 2010. Accordingly, according to the above, the Defendant should have supplied the instant two gold papers by April 18, 201, which was delivered on April 18, 2011 after the delivery date, the Defendant is obliged to pay the Plaintiff the amount less than KRW 203630 (26.).

C. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated by the rate of 20,247,434 won, 135,688 won, totaling 20,383,122 won, and 20,383,122 from April 17, 2012 to August 1, 2012, which is the date when the judgment of this case is rendered by the Defendant, to dispute over the existence and scope of the Defendant’s obligation to perform, and 5% per annum as stipulated in the Civil Act, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment.

4. Conclusion

If so, the plaintiff's claim of the principal lawsuit is accepted within the above recognition scope, and the remaining principal claim and the defendant's counterclaim are dismissed as they are without merit.

Judges Cho Jin-han

1) As seen earlier, the Plaintiff appears to have paid a total of KRW 77,00,000 in bills and cash. However, the Plaintiff’s assertion was developed on the premise that the amount paid is KRW 70,000,000. Therefore, this Court shall be determined based on this premise.