2016Da254276 Costs of goods

2016Da254283 (Counterclaim) Damage

New deeltecty Co., Ltd.

Taeyang L&C Co., Ltd. (formerly: Taeyang, Inc., Ltd.)

Busan High Court (Chowon) Decision 2015Na23430 (Chowon), (Chowon), 2015Na23454 (Counterclaim) decided September 1, 2016

November 29, 2017

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below, on the grounds as stated in its reasoning, asserted and proved that the supply contract of this case has the nature of contract as a production contract with the content that the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") manufactures and supplies the fugitive prevention film, which is an ancillary object, in accordance with the order of the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant"), and the defendant shall pay the consideration therefor. Thus, the plaintiff claiming the payment of the remuneration not only ends the last process for the production of fugitive prevention film (19500 Bente 302,294) but also has the function that is generally required by social norms, since there is insufficient evidence to support that the above fugitive prevention film produced by the plaintiff has the quality and performance as agreed with the defendant, the plaintiff did not accept this part of the plaintiff's claim.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the assertion and burden of proof as to the contractor's right to claim remuneration, or by misapprehending the legal principles on

2. Regarding ground of appeal No. 2

According to the reasoning of the lower judgment, the lower court determined, based on its reasoning, that the Plaintiff and the Defendant did not have any obligation to refund the said damages that the Defendant had already completed settlement to the Plaintiff, on the grounds that: (a) determined the amount of damages to be borne by the Plaintiff regarding “RMA” as KRW 4,387,783,868; and (b) determined that there was an settlement agreement under which the Plaintiff deducted the amount from the price of fugitive film supplied to the Defendant from May 2012 to July 2013; (c) on the other hand, there is insufficient evidence to support that such settlement agreement was caused by the Plaintiff’s mistake;

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on implied agreement

3. As to the third ground for appeal

According to the reasoning of the lower judgment, the lower court determined, on the grounds as indicated in its reasoning, that, among the fugitives that the Plaintiff supplied to the Defendant, the films for prevention of scattering returned from the instant Chinese enterprises from September 2013 to September 2014 did not meet the quality or performance prescribed in the instant supply contract, and that the damages verified as a result of such defects did not constitute KRW 3,337,291,928 in total, or KRW 50 per cent of the negligence on the part of the Defendant (i.e., KRW 1,668,645,964 (= KRW 3,337,291,928) that the Plaintiff shall pay to the Defendant.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal principles as to the burden of proof of damages in lieu of defect repairs

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin

Justices Kim Yong-deok

Justices Park Sang-ok

Justices Park Jung-hwa