(영문) 서울중앙지방법원 2016.11.18 2016나46375

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(영문) 서울중앙지방법원 2016.11.18 2016나46375

위약금

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1. Of the judgment of the court of first instance, the part against the Defendants in excess of the following order for payment shall be revoked, and that part shall be revoked.

Reasons

1. Facts of recognition;

A. A. Around June 2013, the Plaintiff, who operates a restaurant, provided that the Plaintiff would supply alcoholic beverages for at least three years to Defendant A without interest. Defendant A paid KRW 1,00,000 each month from July 2013 to December 2015, and Defendant A agreed to pay to the Plaintiff the amount equivalent to 20% of the loan as penalty in the event that Defendant A’s arbitrary transaction is discontinued within the said transaction period (hereinafter “instant penalty agreement”). Defendant B provided a joint and several surety under the loan obligation of Defendant A and the instant penalty agreement.

B. A around December 2015, Defendant A arbitrarily terminated the transaction of alcoholic beverages with the Plaintiff.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 14, purport of the whole pleadings

2. Determination

A. According to the above facts of determination as to the cause of the claim, the Defendants are jointly and severally liable to pay the penalty to the Plaintiff in accordance with the agreement on the penalty in this case.

B. As to the Defendants’ assertion, the Defendants’ assertion (1) lost the validity of the agreement on the penalty of this case as long as Defendant A fully repaid the loan, or (2) the agreement on the penalty of this case is null and void due to unfair terms and conditions or unfair terms and conditions.

(2) First of all, according to the agreement on penalty of this case, regardless of whether Defendant A repaid a loan, Defendant A shall pay a penalty in the event it violates the agreement with the Plaintiff, including the agreement on compulsory sale period, so the above assertion by the Defendants is without merit as it is contrary to the terms and conditions of the agreement on penalty of this case.

(3) Next, “Terms and Conditions” subject to the Act on the Regulation of Terms and Conditions, regardless of its name, form or scope, shall be construed as having entered into a contract with several other parties.

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