(영문) 서울중앙지방법원 2016.11.16. 선고 2016나29455 판결

The defendant shall pay to the plaintiff 46,31,700 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff is selected by the court of first instance, but the court of first instance tried to recover damages due to the defect liability and the non-performance of obligation, but withdrawn the claim for damages due to the defect liability at the trial after remand).

2. The place of appeal;

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Basic facts

A. On November 23, 2010, the Plaintiff (hereinafter referred to as the “Plaintiff”) entered into a purchase contract with the Defendant, who is a supplier of records disinfection chemicals (hereinafter referred to as “instant contract”) on the part of November 23, 2010 in order to eliminate harmful insects and fungtos that damage paper records. On December 22, 2010, the Plaintiff (hereinafter referred to as the “Plaintiff”) supplied 1,608 medical supplies from the Defendant for solid disinfection chemicals (hereinafter referred to as “the instant disinfection chemicals”). On December 27, 2010, the Plaintiff paid 37,788,000 won for goods to the Defendant.

B. At the time of the instant contract, the Plaintiff demanded the submission of a test report issued by a certified testing institution on disinfection effects, etc. by specifying the use, ingredients, disinfection effects, etc. of paper records using the specifications and specifications of materials for disinfection treatment chemicals (hereinafter “the instant specifications”). The main contents of the instant specifications are as follows.

(a) use of medicine: For disinfection of paper, such as records and relics;

(2) Chemicals ingredients: The disinfection effect must be harming the human body, and there should be no environmental pollution: the germs (gyza L. 100% of microbials (gyza L.), fungus (i.e., sitophilous) 100% of death after disinfection, fungi shall not have a birth place for five days after disinfection treatment, and piracy shall not have a two-hour movement. (4) The stability of disinfection medication is that there should not be a movement after 2 hours: internal strength, seal strength, seal strength, heat strength, white color, pH not causing the heat of the results of physical properties change in the records (5) disinfection method: the medicine does not have a sed and sediative phenomenon due to direct contact with the records.

C. The Defendant submitted to the Korea Testing and Research Institute of Chemical Convergence (hereinafter referred to as the “KTR”), Fung Cungico test to the Korea Testing and Research Institute of Agricultural Science at the Chungcheongnamnam University, a test report as follows (hereinafter referred to as the “Defendant Test Report”).

A person shall be appointed.

D. On December 201, the Plaintiff, while using the instant disinfection chemicals, requested KR to examine the disinfection effect of the instant disinfection chemicals at the expense of KRW 8,543,700 in order to verify the disinfection effect. The Plaintiff conducted a test from December 19, 201 to January 26, 201, and submitted the following test report (hereinafter collectively referred to as the “Plaintiff’s test report”).

A person shall be appointed.

E. Unlike the Defendant’s report on the instant disinfection medicine and the Plaintiff’s report on the test result, the main reason behind the difference is that the Defendant’s request did not put records inside the disinfection equipment and put them into the stuffed and disinfected, and the effect of disinfection differs depending on the existence and quantity of records within the disinfection equipment operated by the creaming method, as the Plaintiff’s request was conducted by taking records inside the disinfection equipment and disinfected.

[Ground of Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 4, Gap evidence 5, Gap evidence 6-1 through 4, Gap evidence 7-1 through 3, Gap evidence 10, Gap evidence 10, and the purport of the whole pleadings and arguments before the remand of the witness Gap.

2. The parties' arguments and the judgment on them

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff publicly announced the standards for disinfection effect through the instant specifications and demanded a certified testing institution to submit a test report meeting the standards. Accordingly, the Defendant guaranteed the disinfection effect of the instant disinfection medication by submitting the Defendant’s test report prepared to meet the standards for disinfection effect, but the Plaintiff’s test report showed that the disinfection effect of the instant disinfection medicine fell short of the standards. Therefore, the Defendant failed to perform its obligations.

(2) The defendant's assertion

The reason why the results of the Defendant’s examination report and the Plaintiff’s examination report are different is that the relevant method of the disinfection effect test of the instant disinfection medication had an impact on whether or not the relevant records were loaded. The Plaintiff’s examination report, which tested the disinfection effect of the instant disinfection medication while being loaded with the records in the disinfection equipment, cannot be deemed an appropriate test method because the results vary depending on the form, materials, and degree of pollution of the records. Thus, the Plaintiff’s examination report alone cannot be deemed as defective in the instant disinfection medicine.

B. Determination

(1) Occurrence of damages liability

(4) The above evidence and evidence No. 11, Gap evidence No. 12, Gap evidence No. 16 through No. 19, Gap evidence No. 25, and Gap evidence No. 26 comprehensively revealed the overall purport of pleadings. ① The plaintiff purchased the disinfection medication of this case to disinfect records, and the plaintiff specifically demanded 10% of germs and harmful insects after disinfection through the standard of this case. ② The plaintiff demanded that the disinfection medicine of this case have disinfection effect on records, ② The defendant's disinfection equipment and promotional materials of disinfection chemicals contain 00% of the records of the records of this case's disinfection equipment and 10% of the records of this case's disinfection effect, and 10% of the records of this case's disinfection effect of 20% of the records of this case's disinfection equipment and 10% of the records of this case's disinfection effect, and 20% of the records of this case's disinfection equipment and 10% of the records of this case's disinfection disinfection effect.

(5) Although there is no officially recognized method of testing for records disinfection chemicals, in light of the following: (a) the Plaintiff entered into the instant contract; (b) the use of the instant disinfection chemicals; and (c) the method of the instant disinfection chemicals disinfecting records by the method of routation, etc., the test method of the Plaintiff’s report is inappropriate.

In order to verify the disinfection effect requested by the Plaintiff through the instant specifications, it cannot be determined that the method of testing the Plaintiff’s test report, which carried records inside the disinfection equipment, appears to be more appropriate than the method of testing the Defendant’s test report, which carried out only the spawn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn sn

(2) Scope of damages

① Since fung et al. were reproduced on the surface of the paper of records at a rapid speed where fung et al. were generated, damaged the surface of materials, and damaged parts aggravated damage caused by the reproduction of microorganisms, there is a need to 100% destroy records by disinfecting and treating fung et al. before the records entered the west. For records where 100% of the relevant disinfection medication does not have the harmful insects and germs effect, the records of the relevant disinfection shall be disinfected by using disinfection equipment and disinfection chemicals. ② The Plaintiff was disinfected the records using disinfection equipment provided by the Defendant. The Plaintiff is deemed to have been manufactured to correspond to the Defendant’s disinfection equipment and not compatible with other disinfection equipment. Therefore, it is practically impossible to purchase other disinfection chemicals that can be disinfected using the Defendant’s disinfection equipment; ③ it falls under 700 won et al., 70887 of this case’s disinfection equipment or 804 of this case’s general disinfection equipment through objective and professional verification agency; and ③ it constitutes 7080 won et al.788,707 of this case’s.

3. Conclusion

The defendant is obligated to pay damages for delay at the rate of 20% per annum from August 9, 2012 to the day of full payment, which is the day following the day when a copy of the complaint of this case was served on the defendant, as the plaintiff seeks.

Therefore, the plaintiff's claim due to default is justified, and the judgment of the court of first instance is modified as above, and it is so decided as per Disposition.