2019Na14965 Service Costs

A Stock Company

Law Firm Jin-jin, Counsel for the defendant-appellant

Attorney Lee Jong-hoon, Counsel for the plaintiff-appellant

Attorney Choi Do-il

B Regional Housing Association

Law Firm Decin, 200

[Defendant-Appellant] The Head of Si/Gun/Gu

Attorney Yang Sung-hee et al.

Daejeon District Court Decision 2018Gahap100390 Decided September 6, 2019

2020, 4.28

June 18, 2020

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order to pay is revoked. The defendant shall pay to the plaintiff 352,00,000 won with 5% interest per annum from November 29, 2017 to June 18, 2020, and 12% interest per annum from the next day to the day of full payment. 2. The plaintiff's remaining appeal is dismissed.

3. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder 9/10 by the Defendant, respectively.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

With respect to the Plaintiff KRW 1,386,257,723 and the amount of KRW 908,820,00 among them, the Defendant shall pay to the Plaintiff 5% per annum from April 14, 2017 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment, with respect to KRW 477,437,723, 5% per annum from April 27, 2017 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the plaintiff falling under the order of payment under the judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff 352,00,000 won with 5% interest per annum from April 14, 2017 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Scope of the judgment of this court;

At the first instance court, the Plaintiff claimed against the Defendant for the payment of the service cost of KRW 908,820,00 and the delayed payment of KRW 477,437,723 as well as the delayed payment of the loan amount of KRW 556,820,723 as well as KRW 477,437,723 as well as the loan amount of KRW 1,034,257,723 as well as the delayed payment of the loan amount of KRW 477,723 as well as the delayed payment of the loan amount of KRW 1,034,723 as well as the delayed payment of the loan amount of KRW 908,820,00 as well as the delayed payment of the loan amount of KRW 47,820,00 as well as the delayed payment of the loan amount of KRW 477,820,56,820 as well as the delayed payment of the loan amount of the first instance judgment.

2. cite the judgment of the court of first instance

The reasoning for this part of this Court is as stated in the reasoning of the judgment of the court of first instance, except for the addition or dismissal as follows, and deletion of not more than 14 pages 17. Thus, this part is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○ The 6th 15th 15th 15th 11th 7th 7th 7th "90% of the project approval phase" is regarded as "the plaintiff", respectively, and "90% of the starting phase".

○ A'No. 9' is added to the 7th sentence of the first instance court (based on recognition).

○ From 20th to 14th, the first instance court's decision 20th to 14th, [5] The judgment and the second instance court's decision 20th to 20th 14th 20th 14th 200.

5) Determination on the assertion of reduction of agency fees

A) Summary of the Defendant’s assertion

In the process of the instant project implementation, the Plaintiff’s construction cost agreed with G, who is a contractor, has increased from KRW 3,350,00 to KRW 3,430,00 per square year, and the Defendant’s members have additionally borne the contributions, and the Plaintiff’s representative director promised to bear KRW 380,000,000 for the increased construction cost as above to the Defendant around November 2016. After that, the Plaintiff’s H director and the president of the I head agreed to pay KRW 320,000 for the service cost (agency fee) that the Defendant agreed to pay to the Plaintiff from KRW 3,20,000 for the service cost (agency fee) that was reduced by KRW 598,00,000 for the reduction of KRW 30,00 for the service completion data and the balance analysis table.

Therefore, the Defendant is obligated to pay only the remainder of the increased construction cost, which was deducted or reduced by the Plaintiff from the service cost of this case, which was agreed to be borne by the Plaintiff.

B) Determination

According to the evidence Nos. 11-1, 31 of Eul, the fact that the director of the plaintiff's business team H and the director of the headquarters are sent to the defendant's members J on September 11, 2017; October 27, 2017; "598,00,000 won for agency business;" and "3.20,000,000,000 won for agency business;" and "the portion of completion of approval of the business (the evidence No. 11-1; the completion of the business approval) and "B balance Analysis (the completion portion of the business approval)" (the evidence No. 11-3) are recognized.

However, in full view of the following circumstances acknowledged by the purport of Gap's evidence Nos. 1, 2, 27, Eul evidence Nos. 9, 11, and 13 and the entire arguments, it is insufficient to acknowledge that the plaintiff and the defendant bear the increased construction price of KRW 380,00,000 between the plaintiff and the defendant, and there is no other evidence to prove that there was a definitive intent to deduct or reduce the increased construction price from the service cost of this case.

The defendant's above assertion based on this premise is without merit.

① The above materials provided by the Plaintiff to the Defendant are not only written documents prepared for the purpose of reporting the business progress to the Plaintiff Company or the Defendant, but also it is difficult to deem the service costs of this case as final materials prepared by the Plaintiff (as a result of the entry of No. 11-2 of the evidence No. 11-2 of the Defendant’s Union members submitted by the Defendant, the Defendant J sent the Defendant’s other members of the Defendant’s association with the message “B” (the “A Company I head”) by delivering the above “B” analysis sheet through a cell phone page on October 27, 2017.

② In addition, there is no statement that the Plaintiff bears the amount equivalent to the increase in the construction price or deducts or reduces the amount equivalent thereto from the service cost of this case, and there is no evidence to deem that the Plaintiff delivered the above materials to the Defendant for the purpose of expressing the intent to deduct or reduce the amount equivalent to the increase in the construction price of this case from the service cost of this case (According to the evidence No. 13 of this case, the Plaintiff’s director H delivered the documents for the completion of the business approval to the Defendant Union members J on September 11, 2017 to the e-mail file, and the title of the e-mail is limited to the e-mail file, and no statement is made in the text of this case).

③ “The agent fee of KRW 598,00,000 as indicated in the above materials” is reduced from the amount of KRW 918,00,000 (153 households X6,00,000, value-added tax, separate amount of KRW 150,000) to be paid by the Defendant under the instant agency contract, and the amount of KRW 320,00,000, which is the final sum to be paid by the time of the occupancy in the last stage of the instant business. This does not coincide with the increase in the construction cost of KRW 380,00,00,00 (380,000,0000,320,000,000,000 after the Defendant received the above materials, which is alleged by the Plaintiff. Nevertheless, there is no evidence to deem that there was any discussion between the Plaintiff and the Defendant regarding the service charges (the Plaintiff’s assertion that there was no discussion between the Plaintiff and the Defendant’s own reduction in the construction cost).

This circumstance is inconsistent with the defendant's assertion that prior to the delivery of the above data, or prior to that time, the agreement between the plaintiff on the burden of increasing the construction cost of KRW 380,000,000 or the agreement on the reduction of the service cost equivalent thereto was concluded definitely.

④ In addition to the above materials, there is no document or objective material that supports the Defendant’s assertion or contains any content similar thereto. Furthermore, since October 2017 when the above materials were delivered to the Defendant, there was no action to interpret that the Plaintiff is premised on, or recognized the amount of service charges in filing a claim related to the instant business with the Defendant.

⑤ The amount of KRW 380,000,000, which the Defendant claimed as the portion of the construction cost to be borne by the Plaintiff, exceeds KRW 918,000,000,000 for the service cost to be paid by the Defendant to the Plaintiff under the instant agency contract.

Although the Plaintiff and the Defendant agreed to reduce the amount equivalent to half of the agreed amount, they did not modify the instant agency contract by reflecting the agreement, and did not receive any objective data related thereto from the Plaintiff and the Defendant, other than the aforementioned data, which is very exceptional and it is difficult to believe in light of the behavior shown by the Plaintiff and the Defendant while carrying out the instant business.

C. Sub-committee

Therefore, with respect to the Plaintiff’s 908,820,00 won and 556,820,000 won cited in the first instance trial among them, the Defendant does not have an obligation to pay an additional amount of delay damages from November 29, 2017 to November 28, 2017 (Article 6(2) and (3) of the instant agency contract, which is the date following the due date, to which the Plaintiff requested payment from the Defendant as of November 13, 2017, which was 15 days after the due date, until November 28, 2017) to the extent that it is reasonable for the Defendant to dispute on the existence or scope of the obligation to pay an annual amount of delay damages from September 6, 2019, which is 5% per annum as stipulated in the Civil Act, and 352,000,000 won (the amount of delay damages from the date of the first instance trial to September 6, 2019).

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the part concerning the service cost claim in the judgment of the court of first instance which differs from this conclusion is unfair, the plaintiff's appeal is partially accepted, and the defendant shall be revoked, and the payment of the above money additionally recognized at the court of first instance shall be ordered, and the remaining appeal of the plaintiff shall be dismissed as

The presiding judge, judges and leather

Correction of Judge

Judges Lee Jae-in

1) While the Plaintiff is disputing the authenticity of No. 11-3 of the evidence No. 11-3, the above documentary evidence is a method and purport of No. 11-1 of the evidence No. 11 of which no dispute over the formation of the said evidence exists.

Since it is recognized that the contents are the same, the establishment of the petition is presumed.