2011 Ma47474, Costs of goods

2012 grouped 101153 (Counterclaim) damages

A

B A.

November 20, 2012

December 18, 2012

1. The Defendant (Counterclaim Plaintiff) shall pay 82,183,090 won to the Plaintiff (Counterclaim Defendant) and 6% per annum from May 20, 201 to December 18, 2012, and 20% per annum from the next day to the day of full payment.

2. The Plaintiff (Counterclaim Defendant)’s remaining principal claim and the Defendant (Counterclaim Plaintiff)’s counterclaim are dismissed, respectively.

3. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

4. Paragraph 1 can be provisionally executed.

The principal lawsuit: The defendant (only hereinafter referred to as "the defendant") shall pay 83,293,870 won to the plaintiff (the counter defendant; hereinafter referred to as "the plaintiff") and 6% per annum from May 20, 201 to the service date of a duplicate of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

Counterclaim: The plaintiff shall pay to the defendant 80,000,000 won with an annual interest of 20% from the day following the service of a copy of the counterclaim of this case to the day of complete payment.

1. Basic facts

A. On February 16, 2011, Nonparty C drafted a supply contract with the Defendant Company on behalf of the Plaintiff (hereinafter “instant contract”). The main content of the contract is as follows.

-B A (hereinafter referred to as “A”) and D (hereinafter referred to as “B”) shall enter into this Agreement.

○ Article 2 (Supply Products)

1. Products developed and produced by Eul shall be limited to those for which Gap intends to use specified products;

2. B shall be supplied by Party A to the place designated by Party A (which may be supplied in installments) within the payment period specified in the individual order.

3. B shall obtain A’s consent in advance when it intends to deliver products prior to the payment period.

4. If Party B considers it difficult to comply with the due date, it shall immediately notify Party A of such fact and comply with Party A’s measures (the due date may be postponed by one week).

Article 3 【Method of Settlement of Payments】

A shall pay 30% of the ordered amount at the time of placing an order to B, and shall pay 70% remaining within 30 days after the receipt of goods.

○ Article 5 (Inspection of Delivered Goods)

1. A shall notify B, orally or in writing, of whether the quantity and quality standards of the supplied goods of B are met at the time of acquiring them: Provided, That where it is impossible to promptly verify whether the goods are inferior due to its characteristics, a post facto notice may be given;

2.If the defective products referred to in the preceding paragraph are not disposed of after-sales without good cause, they may be disposed of at will according to Party A’s judgment, and all expenses incurred in the course of the processing shall be borne by Party A.

Article 6 (Compensation for Damages)

1. B shall compensate for any loss caused to A due to defective goods supplied to A;

2. B shall compensate for any loss caused to A due to a delay in the payment period due to a cause attributable to B;

3. Other matters not specified in this contract shall be governed by general commercial practices.

Article 7 【Effective Period of Contract】

1. The contract period shall be one year from the date of conclusion of the contract.

Date of conclusion of a contract: February 11, 201

B. On February 28, 2011, the Defendant Company sent the original order (Evidence 3-2 of the evidence No. 3-2) stating the following quantity and price, to C, with the official order on February 28, 201, and the Plaintiff supplied the same quantity of the original order (hereinafter “the original order”) to E as follows between April 14, 201 and April 20, 201.

A person shall be appointed.

C. The Defendant Company remitted KRW 39,056,60 on February 28, 201 to the deposit account in the name of A, and KRW 20,069,50 on April 12, 201, respectively.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 3, 5 (including virtual numbers), Eul evidence 3 (including virtual numbers) and the purport of the whole pleadings

2. Determination on the main claim

(a) Confirmation of parties to a contract;

(1) The plaintiff and the defendant's assertion

The plaintiff asserts that the party to the contract of this case is the plaintiff, and the defendant asserts that the party to the contract of this case is not the plaintiff but D.

(2) Facts of recognition

(A) The Plaintiff agreed on the unit price etc. of the Defendant Company from January 11, 201 to January 13, 201 of the same year, and sent the unit price table (Evidence A No. 1 to 4) to the head of F division of the Defendant Company on four occasions. Each unit price table was written as follows: “FRM: G; “H apartment 101 Dong 1102, the lower end: I and FAX JJ.

(B) At the time of preparing the instant contract on February 16, 2011, C entered “A” at the end: G, address: G, and representative of Gangdong-gu Seoul Metropolitan Government H Apartment 101 Dong 1102, representative: A’s seal was affixed on the side.

(C) On February 28, 201, the Plaintiff issued each tax invoice of KRW 39,056,60 on KRW 39,000, and KRW 20,069,50 on April 12, 2011 to the Defendant Company, and each tax invoice of KRW 1,069,50 on KRW 20,00 on KRW 20,00,000 on KRW 20,00,000 on KRW 10,000,000 on KRW 10,000,000 on each supplier’s column, and the seal of KRW

(D) The limited liability company is a company located in M at the time of Guluri, and its representative director is N.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6, and 8 (including virtual numbers) and the purport of the whole pleadings

(3) Determination

Generally, who is a party to a contract constitutes a matter of interpretation of the intent of the party involved in the contract. Interpretation of an expression of intent constitutes a matter of interpretation of the party involved in the contract. Interpretation of an expression of intent clearly establishes the objective meaning given by the party to the act of expression, and in cases where a written document is prepared between the parties as a disposal document, the objective meaning given by the party to the act of expression according to the contents of the written document, regardless of the party’s internal intent, shall be reasonably construed regardless of the party’s internal intent. In such cases, unless the objective meaning of the text is clear, barring special circumstances, the existence and content of the expression of intent shall be recognized (see Supreme Court Decision 2009Da92487, May

In light of these legal principles, in light of the above facts, it is reasonable to view that the party to the contract of this case is "Plaintiff" rather than "limited company L" as stated in the contract of this case, and each of the descriptions of Gap evidence 3, 7 (including provisional numbers), Eul evidence 1, 2, and 6 (including additional numbers) is insufficient to reverse it, and there is no other counter-proof.

(c) Unpaid amount;

(1) According to the facts found above, the Defendant Company ordered the Plaintiff 27,880 Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-Sari-S

16,79,400 won.

(2) The Plaintiff’s error inside and outside 3% of the order amount is customary to understand each other, and the Defendant Company also approved the supply of 5,238 mersh Won Won. As such, the Defendant Company asserted that the Defendant Company should pay KRW 17,809,200 according to the actual supply amount with the price of the mersh original unit. However, it is insufficient to recognize that the entries of 13 through 16 (including the mersh number) have the custom as alleged by the Plaintiff, or that the Defendant Company approved the excessive supply of the mersh original unit in the meaning of the additional payment of the mersh original unit, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s above assertion is without merit.

C. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiff the amount of KRW 82,183,090 (the amount of KRW 111,63,50 in the Warsaw 16,79,400 + value-added tax 11,166,350 + KRW 1,66,350 + KRW 1,679,940 + KRW 39,056,600 - KRW 20,069,500), which is recognized to be sufficient to dispute the existence and scope of the defendant's obligation to perform from May 20, 201 to December 18, 2012, the amount of KRW 6% per annum under the Commercial Act and damages for delay at a rate of 20% per annum under the Act on Special Cases Concerning the Facilitation, etc. of Legal Proceedings, which is the date the judgment is rendered.

D. Accordingly, the defendant's defense to the effect that the contract of this case was not effective since it was concluded by the plaintiff and C's deception or concluded by mistake, and since the plaintiff did not supply the products directly developed and produced, the contract of this case was not effective. However, as examined in Section 3-A (A) below, there is no evidence to acknowledge it. Thus, the defendant's defense is without merit.

3. Judgment on the counterclaim

A. Requests for restitution of unjust enrichment

(1) Revocation by deception;

The defendant asserts that the plaintiff and C should return 59,126,100 won of the original amount received from the defendant as unjust enrichment because they had deceiving the defendant as if they were D and they had concluded the contract of this case.

Therefore, in light of the fact that the name of "D" and the name of "C" were partially used in the name of "D" and the name of the representative director of L limited liability company was not written, and that the unit price table, the contract of this case, the tax invoice of this case, etc. as mentioned in the above 2-A (2) stated the plaintiff's signature and seal as well as the name and seal of the plaintiff's trade name in the unit price table, G and the address of the plaintiff's trade name, it is not sufficient to recognize that the plaintiff and C had deceiving the defendant as alleged by the defendant, and there is no other evidence to acknowledge it. Thus, the defendant's above assertion does not have any reason to further examine the remaining points.

(2) Cancellation by mistake

The defendant asserts that since the contract of this case was cancelled because it was mistakenly known that the contract of this case was D, the plaintiff should return 59,126,100 won of the original amount received from the defendant under the contract of this case as unjust enrichment.

Therefore, even though the name of "D" was partially used for the name, e-mail, etc., the name of the representative director of L limited liability company was not written, and the unit price table, this case contract, tax invoice, etc. as mentioned in subparagraph 2(A)(2) above, the Plaintiff’s signature and seal and the Plaintiff’s trade name G, etc. were entered several times, and the Defendant also entered as A(G) the fact that the Defendant, not the deposit account in the name of L limited liability company, remitted the original amount to the deposit account in the Plaintiff’s personal name. In light of subparagraph 3-1, 3-2, etc., the Defendant’s letter of evidence Nos. 3, 7 (including paper numbers), 1, 2, and 6 (including paper numbers) alone is insufficient to recognize that the Defendant had mistakenly known the parties to the contract of this case as “D,” and there is no other evidence to acknowledge this otherwise, and therefore, the Defendant’s above assertion is not sufficient to further examine the remainder of the above assertion.

(3) Invalidity by breach of contract

The defendant asserts that since the plaintiff supplied the original unit that the plaintiff did not directly develop and produce in violation of Article 2 (1) of the contract of this case, the contract of this case has no validity, the plaintiff should return 59,126,100 won of the original unit price received from the defendant in accordance with the contract of this case as unjust enrichment.

Therefore, as seen earlier, Article 2(1) of the contract of this case provides that "the goods that the plaintiff intends to use as the goods for the same purpose as the goods that he/she intends to use." However, there is no dispute between the parties that the plaintiff entrusted the production of the original group of this case to the defendant company and supplied them to the defendant company. However, since there is no ground to interpret "the goods that he/she developed and produces" as only the goods that he/she directly develops and produces using only his/her human and material facilities, it cannot be deemed as violating Article 2(1) of the contract of this case merely because the plaintiff was in charge of the original production to another company, and even if he/she violated the above provision, it does not have any ground to nullify the contract of this case. Thus, the defendant's assertion is without merit.

B. Claim for damages

(1) The defendant asserts that the plaintiff suffered damage equivalent to 74,919,000 won (5,763 Chapter X 13,00 won) for stacks as ordered by the defendant due to the plaintiff's supply of a small quantity of the raw materials below the ordered quantity, as it caused water to fall into the original part of this case supplied by the plaintiff, caused a serious difference in thickness and contamination by each type, serious difference in thickness and pollution, the original part of which is so severe that it cannot be treated by air racks, and that there was any defect that can not be treated by air racks, and the plaintiff's supply of the raw materials less than the ordered quantity.

Therefore, it is not sufficient to recognize that there was a defect, such as the defendant's assertion, only with the statement of Nos. 6, written evidence No. 6, in the original body of this case, and there is no other evidence to acknowledge it.

In addition, as seen earlier, the Plaintiff supplied the Warsaw Republic less than the ordered quantity. However, unless there is no evidence to prove that the Defendant specifically raised an objection to this, it cannot be readily concluded that the Defendant’s supply of the order stacks 5,763 cannot be ordered due to such circumstance, and there is no other evidence to acknowledge this otherwise. Therefore, the Defendant’s above assertion does not seem to have any mother or is without merit.

(2) The defendant asserts that the plaintiff suffered a loss equivalent to the manufacturing cost of KRW 29,240,00 (Chapter 2,924 x 10,000) since the plaintiff's defect in the main body of this case 2,924 produced by the defendant could not be supplied as the non-inspection failure due to the defect in the main body of this case supplied by the plaintiff.

Therefore, there was a defect in the original body of this case only with the statement No. 6, and due to the defect, it is insufficient to recognize that the defendant failed to pass the inspection, and there is no other evidence to acknowledge it. Thus, the defendant's assertion is without merit.

4. Conclusion

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

Judges Kim Jong-soo