2019Na2043062(principal lawsuit) Action

2019Na2043079 (Counterclaim) Damage

Appellant-Appellant

A Stock Company

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Ba-ho, Justice Ba-ho, Justice Ma-ho, Counsel for plaintiff

Appellant-Appellants

B A.

Attorney Na-yang, Counsel for the plaintiff-appellant

Seoul Central District Court Decision 2018Gahap560383 (Main Office), 2019 Decided August 23, 2019

Gohap528782 (Counterclaim) Judgment

November 2020, 4.

1, 2020. 20

1. Of the part concerning the principal lawsuit in the judgment of the court of first instance, the part against the Defendant (Counterclaim Plaintiff) in excess of the amount ordered to be paid below is revoked, and the Plaintiff (Counterclaim Defendant)’s claim on the principal lawsuit corresponding to the revoked

The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall pay to the Plaintiff (Counterclaim Defendant) an amount of KRW 150 million with an annual interest rate of KRW 18 percent from August 21, 2018 to the date of full payment.

2. The remaining appeals by the Defendant (Counterclaim Defendant) and all appeals by the Plaintiff (Counterclaim Plaintiff) are dismissed.

3. Of the total costs of the lawsuit against the principal lawsuit, 50% is borne by the Plaintiff (Counterclaim Defendant) and the remainder is borne by the Defendant (Counterclaim Plaintiff). Of the costs of appeal, the part resulting from the counterclaim is borne by the Defendant (Counterclaim Plaintiff).

1. Purport of claim

A. The Defendant (hereinafter “Peremptory Notice”) shall pay to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) an amount calculated by the rate of 18% per annum for KRW 311,137,040 and KRW 300 million per annum from August 21, 2018 to the date of full payment; KRW 11,137,040 per annum for KRW 6% per annum from August 21, 2018 to the date of delivery of a duplicate of the instant complaint; KRW 15% per annum from the following day to May 31, 2019; and KRW 12% per annum from the next day to the date of full payment.

B. The plaintiff shall pay to the defendant 30 million won and 18% interest per annum from June 30, 2018 to the day of complete payment.

2. Purport of appeal

A. The plaintiff

(1) The part of the first instance judgment against the Plaintiff, which orders payment under the following, shall be revoked.

(2) The defendant shall pay to the plaintiff 101,137,040 won and 90 million won with 18% interest per annum from August 21, 2018 to the date of full payment; 6% per annum from August 21, 2018 to the date of delivery of the copy of the complaint in this case; 15% per annum from the next day to May 31, 2019 to the date of full payment; and 12% per annum from the next day to the date of full payment.

B. Defendant

(1) The part against the defendant among the part concerning the principal lawsuit in the judgment of the court of first instance and the counterclaim shall be revoked.

(2) The plaintiff's main claim corresponding to the cancelled part is dismissed.

(3) The Plaintiff shall pay to the Defendant KRW 30 million and the amount equivalent to 18% per annum from June 30, 2018 to the day of full payment.

1. Quotation of the first instance judgment

The reasons to be stated in this judgment are as stated in the judgment of the court of first instance except for the dismissal as described in the following paragraph (2). Thus, it is cited by the main sentence of Article 420 of the Civil Procedure Act as it is.

2. Parts to be dried;

0. Recognition by taking into account the following facts and the overall purport of arguments in the instant case from No. 14 to No. 15 of the first instance judgment

Considering the following circumstances, the penalty for breach of contract under Article 21(1)1 of the Business Partnership Agreement is an estimate of damages for breach of contract of this case, and the estimated amount of such liquidated damages is unreasonable and excessive. Therefore, it is reasonable to reduce the penalty to KRW 150 million (=300 million x 50%) by taking account of all the above circumstances into account.

① Since the Defendant entered into an entrustment management contract with the Plaintiff in 2006, the contract has been renewed several times without any particular problem. However, even if the instant business partnership agreement was concluded on June 4, 2018 by the Defendant, barring any special circumstance, it is anticipated that the termination will be terminated on March 31, 2019, barring any special circumstance, and thus, the period during which the Plaintiff was not paid the commission fee upon the Defendant’s notice of termination is not only nine months (from July 1, 2018 to March 31, 2019). Furthermore, if the commission fee is anticipated based on the tax invoice on the net sales during the same period of the previous year, the amount is approximately KRW 100,000,000,000 won.

② While the Plaintiff entered into a contract with the Defendant for the consignment management of the film board with D’s brand, around February 2013, the Plaintiff additionally released a new film board (0 note), and as a result, upon the Defendant’s request at the time of the renewal of the contract on April 1, 2013, the Plaintiff included a provision that “B (Plaintiff) shall hold a consultation if an open plan occurs for the open site in the above table and neighboring areas within the contract period.”

③ However, on December 5, 2016, the Plaintiff entered into an entrustment management agreement with respect to the same brand mpex film board (PH), and again, concluded a contract on the entrusted management agreement with the Defendant’s film board (i.e., the Defendant’s film board 6 km or more, while the wood board 0 was located in the Gu court, the wood board H was located at a place less than 1.2 km or smaller than 1.2 km). (iv) Although it is sufficiently anticipated that business losses will occur to the Defendant in the event the film board of the same brand mar located in the vicinity of a small and medium-sized local city, such as Bapo City. However, the Plaintiff did not take any measures to protect the Defendant with respect to the business losses that may arise to the Defendant

⑤ Even if the Plaintiff did not violate the duty of consultation under Article 4(2) of the Business Partnership Agreement, it appears that the Plaintiff actually decided whether to withdraw a new film theater according to the Plaintiff’s unilateral intent. In light of such overall circumstances, the Defendant’s notice of termination as of June 4, 2018 is considerably attributable to the Plaintiff.

○ From 3 to 8, the 16th of the first instance judgment. The 3rd of the 16th of the 3rd of the 195

Therefore, pursuant to Article 21(2) of the Business Partnership Agreement, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 18% per annum from August 21, 2018 to the date of full payment, after the Plaintiff’s notice of termination as of August 16, 2018, upon receipt of the Defendant’s notice of termination as of August 16, 2018, which is equivalent to 50% of the amount stipulated in Article 21(1)1 of the Business Partnership Agreement, to the Plaintiff as penalty.

3. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit shall be accepted within the scope of the above recognition, and the remaining principal lawsuit and the defendant's counterclaim shall be dismissed. Since the part of the judgment of the court of first instance against the defendant ordering payment in excess of the above recognition amount is unfair, it shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed, and all remaining appeal of the defendant and the plaintiff's counterclaim shall be dismissed. It is so decided as per Disposition.

The presiding judge shall be a judge.

Judges Does

Judges Song Jinop

1) The amount of money that the Defendant paid to the Plaintiff during the period from July 1, 2017 to March 31, 2018 is paid to the Plaintiff as commission management fees and other expenses.

103,298,658 Won (see Evidence Nos. 6 to 14)

2) Evidence No. 18