(영문) 수원지방법원 2010.4.22.선고 2009나31939 판결

A. The defendant shall pay to the plaintiff 5,511,00 won with 6% interest per annum from May 26, 2009 to April 22, 2010, and 20% interest per annum from the next day to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. One-fourth of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

Purport of claim and appeal

[Disposition] The defendant shall pay to the plaintiff 7,748,400 won with 20% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment (the plaintiff has reduced its claim in the trial).

[Purpose of appeal] Revocation of the judgment of the first instance court. The plaintiff's claim is dismissed.

Reasons

1. Determination as to the cause of claim

(a) Facts of recognition;

The plaintiff is a juristic person, the business purpose of which is to manufacture functional co-rating and wholesale and retail, and the defendant is a person engaged in plastic surface processing business under the trade name of "C," and the plaintiff supplied the defendant with goods, such as paints and scenarios, in accordance with the defendant's order from January 1, 2006 to April 30, 2006.

A person shall be appointed.

B. On the other hand, on February 10, 2009, the Plaintiff urged the Defendant to pay the price of the instant goods by means of delivery of content-certified mail (hereinafter “the instant highest notice”), and filed the instant lawsuit against the Defendant on March 27, 2009.

[Ground of recognition] Facts without dispute, entry of Gap's evidence of subparagraphs 1 through 4 (including branch numbers for each case) and the purport of whole pleadings

B. Determination

Therefore, barring special circumstances, the defendant is obligated to pay 7,748,400 won for the price of goods and damages for delay as requested by the plaintiff.

2. Judgment on the defendant's assertion

A. The defendant's assertion

Since the Defendant, while operating the above C, transferred or acquired all of the claims and obligations related thereto, due to the financial situation of the Defendant transferred or acquired the entire business as a type D, the instant goods payment obligation is the obligation of D, and thus, cannot be claimed against the Defendant. Even if the Plaintiff had a claim against the Defendant on the goods, it is not reasonable to seek payment therefor from the Defendant. Even if the Plaintiff had a claim against the Defendant on the goods, since the three-year extinctive prescription period has expired due

B. Determination

1) If the consent of an obligee is required in order to take effect with respect to the assertion of assumption of obligation, it is limited to the case of assumption of obligation with respect to the assumption of obligation, and if the assumption of obligation is overlapped, it is a matter regarding the interpretation of the intent of the parties indicated in the contract of assumption of obligation. In the assumption of obligation, if it is unclear whether the assumption of obligation is made with respect to the assumption of obligation, or if it is not known whether the overlapping person is an executor of the obligation, it shall be deemed that the assignee has taken over it repeatedly (see, e.g., Supreme Court Decisions 98Da33765, Nov. 24, 1998; 2002Da362

On the other hand, if the purport of the defendant's assertion of the assumption of obligation is overlapping, it is not necessary for the plaintiff's consent. However, in this case, the defendant still bears the obligation to the plaintiff who is the creditor with D, which is the creditor, together with D, which is the assumption of obligation. Thus, if the defendant asserts the acceptance of the obligation with the discharge obligation, it is not reasonable for the defendant's argument, and if it is claimed without any evidence, it is recognized that the plaintiff who is the creditor has

2) As to the Defendant’s objection to the statute of limitations defense, the Plaintiff re-fights against the interruption of the statute of limitations by demanding the payment of the goods of this case on February 10, 2009.

Unless there exist special circumstances, the extinctive prescription of credit payment claims arising from a continuous goods supply contract shall not be calculated from the date of transaction as to whether the extinctive prescription is terminated upon the lapse of three years from the time of occurrence (see Supreme Court Decisions 77Da2463, Mar. 28, 1978; 91Da10152, Jan. 21, 1992; 2006Da68940, Jan. 25, 2007).

In addition, a peremptory notice to suspend the extinctive prescription has no effect of interrupting prescription unless a judicial claim, intervention in bankruptcy proceedings, summons for compromise, voluntary attendance for compromise, seizure or provisional seizure, or provisional disposition is made within six months (Article 174 of the Civil Act). In this case, the public health class, the plaintiff and the defendant all have to terminate the extinctive prescription if they are not exercised for three years pursuant to Article 163 subparagraph 6 of the Civil Act. Even if a claim occurred due to a continuous transaction relationship between the plaintiff and the defendant, there is no special circumstance on the due date, the extinctive prescription period shall expire individually after three years have elapsed from the time when the plaintiff's claim for the price for each of the goods occurred. Since the plaintiff urged the defendant to pay the price for the goods of this case and filed the lawsuit of this case within six months from the date when the plaintiff notified the defendant to pay the price for the goods of this case, the plaintiff's claim for the remainder of the goods of this case had been completed within three years after the lapse of three years from February 10, 2009.

A person shall be appointed.

As to this, the plaintiff's assertion is without merit, since there is no evidence to acknowledge it, since the defendant, after receiving the notice of this case from the plaintiff, demanded that the plaintiff pay all of the price of the goods of this case to the plaintiff.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 5,51,00 won for goods and damages for delay calculated at the rate of 6% per annum under the Commercial Act from May 26, 2009 to April 22, 2010, which is the day following the delivery date of a copy of the complaint of this case, as the plaintiff seeks, from May 26, 2009 to April 22, 2010, 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. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as there is no reason. Since part of the conclusion different from the judgment of the court of first instance is unfair, the defendant's appeal is partially accepted and the judgment of the court of first instance