2018 Gaz. 19494, damages, etc.

A

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

[Defendant-Appellee]

B Corporation

Attorney Lee Jin-hun, Kim Jin-jin, Counsel for the defendant-appellant

November 12, 2020

December 17, 2020

1. The defendant shall pay to the plaintiff 104,581,688 won with 5% interest per annum from July 21, 2018 to December 17, 2020, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 90% is assessed against the Plaintiff, and the remainder 10% is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1,385,051,105 won with 15% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. Status of the parties

The plaintiff is the representative of "C" (individual business operator) for the production of educational video contents and animation, etc., and the defendant is a construction project aimed at conducting educational broadcasts on television.

(b) Conclusion of a service contract, 2015;

1) On March 25, 2015, the Defendant publicly announced a bid for the selection of an external production company of DNA convergence content (hereinafter referred to as “AT separate”) in 2015, the Defendant participated in the bidding and the Plaintiff was selected as a successful bidder.

2) On May 27, 2015, the Plaintiff entered into a service contract with the Defendant with a content that sets the contract amount of KRW 363,00,00 (including value-added tax) by attaching general terms and conditions of the service contract and a detailed statement of service with respect to “the external production of D Convergence Contents” in 2015. The main contents of the above contract are as follows.

[Contract Contract]

B The B Project (hereinafter referred to as the "project owner") and C (hereinafter referred to as the "contractor") shall, when entering into a contract B on an equal footing, undertake to accept the bid bond, proposal request and bid price as part of this contract and perform the contractual obligations in good faith and sincerity, and shall prepare the contract with evidence of this contract and keep one copy of the signature and seal of the parties concerned, respectively. On May 27, 2015, the purpose of this contract for the purpose of Article 1 (a) is to stipulate all the matters concerning the "service" of the "project owner" (hereinafter referred to as the "service") of the "project owner" for the production of convergence content (hereinafter referred to as the "service") in 2015. The contract term of Article 2 shall be in accordance with the terms and conditions specified in the service contract. ① The production and supply of the results of this contract shall be in accordance with the terms and conditions of the "project owner" at the time of the manufacture and supply of the results of the contract.

As a result, “Where it is impracticable to satisfy the intention of broadcasting production by the ordering person,” the ordering person may request “contractors” to determine and supplement, and “the contractor shall, without delay, comply with the request of the ordering person”: Provided, That additional production costs resulting therefrom shall be borne by the contractor. (4) Other detailed matters shall be made in consultation with the ordering person. ① The price to be paid by the ordering person to the contractor shall be the amount specified in the service contract, and the details of the contract shall be as follows: ① the change of Article 9(1) of the Act (unit: prime cost and value added tax) where it is deemed extremely unreasonable to implement the project as stipulated in the contract due to significant changes that could not have been predicted at the time of the contract: the ordering person and the contractor may change the term of the contract, the price and content of the production and service; ② The producer’s “the contractor” and the contractor’s “the contractor shall, even if the scope of the project is reduced, abolished or changed due to the inside and outside circumstances of the ordering person”, include the civil and criminal liability for and content of the production and content of the work.

○ 기준 페이지 및 편수: 회당 최소 6페이지 이상 x 20편○ 작업 내용:① 내용연구 및 동영상 캐릭처 연계된 스토리 작성② 디자인 및 채색 작업○ 납품 방법: 파일 형태로 제작물 납품(※소스 포함)3) 인터렉티브형 콘텐츠○ 제작 형식: 안드로이드 모바일 기반 인터렉티브형 게임○ 제작 편수: 8편 (※시리즈 구성 가능)○ 작업 내용:① 내용연구 및 동영상 캐릭터 연계된 게임 개발② 그래픽 제작 및 오디오 작업○ 납품 방법: 파일 형태로 제작물 납품(※소스 포함)○ 납품: 2015. 12, 31.까지담당 PD : R○ 기타상기의 내용들이 원활히 제작될 수 있도록 사전에 담당PD와 협의하고, 사업을 진행한다.-캐릭터 및 제작물의 수정 요구에 응해야 한다.| - 제작 납품 기일을 엄수한다. 끝.

3) On February 26, 2016, the Plaintiff and the Defendant: (a) calculated to add the production cost and R.T to each of the two images (2Dimation) and the web titing numbers, respectively; and (b) to the production cost of KRW 63,800,000 (including KRW 11,000,000 per piece of video 4x X x web 4 + KRW 40,950,000 per piece of web x 4; and (c) concluded a modified contract to change the delivery date to F; and (d) to the delivery date by February 29, 2016 (hereinafter referred to as “the initial contract and the modified contract”).

(c) Conclusion of a service contract, 2016;

1) On July 26, 2016, the Defendant announced a public announcement of “the selection (presumed budget: 379,000 won and value-added tax) of a manufacturer of convergence content” in 2016, but failed twice. On July 26, 2016, the Plaintiff entered into a service agreement with the Defendant on the terms and conditions of a general service contract and a detailed statement of services with respect to “the production of convergence content” in the form of a free contract on July 26, 2016. The main contents of the above contract are as follows.

[Written Service Contract] B (hereinafter referred to as “project owner”) and C (hereinafter referred to as “contractor”) shall, when entering into a contract on an equal footing, have agreed to accept all the terms and conditions of the contract, such as bid bond, written request for proposal, tender price, etc., as part of this contract, and to perform their contractual obligations in good faith and sincerity, and shall prepare the contract with evidence of this contract and keep one copy of each party’s signature and seal.

B. The purpose of this contract is to stipulate the matters concerning the provision of “services” of the “project owner” of the “project owner” of the “project owner” of the “project for the purpose of this contract under Article 1 (General Conditions of Service Contract). Article 2(1) of the term of contract ① The term of contract shall be in accordance with the terms and conditions specified in the service contract. ① The contents of the convergence content production of this contract are the same as the details of the services. ② The “project owner may conduct an interim inspection on the outcome of the work process of the contractor” from time to time without the direction and consultation of the “project owner” and, as a result of the inspection, it shall be supplemented at the cost of the “project owner” in consultation with the “project owner”. ③ The “in the event of delivery of the outcome of the project, the “contractor” shall be subject to the “in the event of satisfaction of the intention of the broadcasting project owner,” the “in addition to the terms and conditions of the “in return of the outcome of the project owner” and the “in return of the outcome” shall be paid without delay to the contractor.

Article 11 Amendment (1) If it is deemed extremely unreasonable to perform the contract as a result of a significant change in circumstances unexpected at the time of the contract, the ordering person and the contractor for the contract may change the term of the contract, price, and service by agreement. (2) Even if the scope of the project is reduced, abolished, or changed due to the internal and external circumstances of the ordering person, the contractor shall not raise an objection or claim compensation for damages against it. [service specifications] The production of standardized contents / i.e., the production of standardized contents / production and delivery date.

2) On October 19, 2016, the Plaintiff and the Defendant entered into a modified contract with the same unit of production as indicated in the above paragraph (1) and the same unit of production, which adds two copies of the video (2Dimation) and the web file, the contract period to be changed to January 31, 2017, and the production cost to be increased to KRW 27,368,000 (i.e., production cost of the said Part 2 X Xx (including KRW 9,900,000 + KRW 3,784,000 for the production cost of the said Part 2 X Xx, and value added tax).

D. The plaintiff's performance of contract

According to the contract in 2015 and 2016, the Plaintiff produced a video and delivered it to the Defendant. However, the Plaintiff was 221/49 of the total number of 24 video produced under the contract in 2015 and delivered to the Defendant, and the total number of 26 video produced under the contract in 2016 and delivered to the Defendant is 32/33 of the video.

E. Relevant statutes and guidelines for review of unfair special agreements relating to the instant case, including the Fair Transactions in Subcontracting Act (hereinafter referred to as the “subcontract Act”) and the Monopoly Regulation and Fair Trade Act, are as follows:

The term "subcontract transactions" in this Act means that a principal contractor entrusts a subcontractor with the manufacture (including the processing; hereinafter the same shall apply), repair, construction, or service, or a principal contractor re-commissions a subcontractor with the manufacture, repair, construction, or service entrusted (hereinafter referred to as "manufacture, etc.") by another business entity, the subcontractor who is entrusted with the manufacture, repair, construction, or service (hereinafter referred to as "subject matter, etc.") and supplies, delivers, or provides (hereinafter referred to as "supply, etc.") the subject matter (hereinafter referred to as "supply, etc.") to the principal contractor and receives a consideration therefor (hereinafter referred to as "subcontract consideration"), by manufacturing, repairing, constructing, or providing services.

Article 3 (Issuance and Preservation of Documents) (1) Where a prime contractor entrusts a subcontractor with manufacturing, etc., he/she shall issue a document (including an electronic document defined in subparagraph 1 of Article 2 of the Framework Act on Electronic Documents and Transactions; hereafter the same shall apply in this Article) stating the matters prescribed in paragraph (2) to the subcontractor by the following deadline: In cases of entrustment with manufacturing: In such cases, before the subcontractor commences repair works for the supply of goods: In such cases, before the subcontractor performs the contracted repair works: In cases of entrustment with construction: In such cases, the period between the subcontractor and the subcontractor; 4. In such cases, before the subcontractor commences the contracted construction works: In such cases, the period between the subcontractor and the subcontractor: B before the subcontractor performs the contracted construction works: The written contract under paragraph (1) shall include the matters prescribed by Presidential Decree, such as the initial conditions, methods, and procedures for the payment of the subcontract consideration, and other matters to be imposed upon the prime contractor and the subcontractor without any justifiable reason prescribed in Article 16-2 (1).

(1) Where a principal contractor entrusts a subcontractor with the manufacture, etc., he/she shall not compel the subcontractor to determine the subcontract consideration at a price lower than that generally paid for the same or similar manufacture, etc. of the subject matter, etc. (hereinafter referred to as "unfair subcontract consideration"), or to accept such subcontract consideration. (2) Any act of the principal contractor falling under any of the following subparagraphs shall be determined by an unreasonable determination of the subcontract consideration:

(1) Where a principal contractor violates the provisions of this Act, he/she shall be liable to compensate for damages incurred to a subcontractor, unless he/she has notified the subcontractor of the result in writing, and such inspection shall be deemed to have passed: Provided, That this shall not apply where the principal contractor entrusts his/her services among services. Article 18 (Prohibition of Unreasonable Intervention) shall not interfere with the management of the subcontractor by means of regulating the volume of subcontract transactions: Provided, That the same shall not apply to cases where a principal contractor is liable to compensate for damages caused by his/her violation of this Act:

1. Where the subcontractor entrusts repair: Before he/she commences the works for the supply of goods on the entrustment with manufacturing, etc. or for the addition or alteration; 3. Where the construction is entrusted: Before the subcontractor commences the repair works on the entrustment with manufacturing, etc. or for the addition or alteration thereof; 4. In cases of the entrustment of services: Before the subcontractor performs the contracted works on the entrustment with manufacturing, etc. or for the addition or alteration thereof; "matters prescribed by Presidential Decree, such as the requirements, method and procedure for the adjustment of subcontract prices" in Articles 3 (2) of the Enforcement Decree of the Subcontract Act before the subcontractor performs the works on the entrustment with manufacturing, etc. (Presidential Decree No. 25840, Jan. 1, 2015; hereinafter referred to as "objects, etc.") means matters falling under any of the following subparagraphs;

2. The criteria for determining unfair contracts under Article 3-4 (2) 3 of the Act: The term "reasonable requirements for determining the costs incurred by the subcontractor" means the costs incurred by a subcontractor which are not attributable to the subcontractor among the costs incurred by re-working, additional work, or maintenance or repair works conducted by the subcontractor; the term "in addition, the prime contractor shall be determined as to whether the subcontractor requires the subcontractor to perform the commissioned works, etc. according to the relevant Acts and subordinate statutes and the contract between the ordering person and the prime contractor, etc. (No. 188 of the Regulations of the Fair Trade Commission, February 14, 2014). The criteria for determining unfair contracts under Article 3-4 (2) 3 of the Act; the term "in addition, the prime contractor shall be determined as to whether the subcontractor requires the subcontractor to perform the entrusted works, etc. under the provisions of Article 3-4 (2) 2 of the Act or whether the subcontractor bears the burden of the costs incurred by the prime contractor under the provisions of Article 6-4 (2) of the Act, regardless of the name of the subcontractor's price or information required by the subcontractor.

This refers to expenses incurred in the conduct of business. A court may recognize a reasonable amount of damages based on the purport of the whole pleadings and the result of examination of evidence where it is extremely difficult to prove necessary facts in order to prove the amount of damages, even though the damage was incurred due to an act in violation of the provisions of Article 57 (Recognition of Damages) of the Monopoly Regulation and Fair Trade Act.

[Ground of recognition] Facts without dispute, Gap's statements or images, and the purport of the whole pleadings, Gap's statements or images, and the purport of Gap's statements or images as to Gap's 1 through 3, 6, Eul's 2, 5, 6, 15, 18, 28, 29

2. Summary of the plaintiff's assertion

A. Occurrence of damages liability

1) In relation to the 2015 contract, even though the Defendant entered into a contract with the Plaintiff to produce five minutes of learning and twenty minutes of production (24 minutes after amendment) per letter, the Defendant continuously demanded correction, re-production, addition, and modification of the above contract amount, and the Plaintiff had no choice but to produce screen pictures of 221 minutes and 49 seconds exceeding the total contract amount of 120 minutes. In relation to the 2016 contract, the Defendant continued to demand correction, re-production, and addition work by ordering the Plaintiff to produce screen pictures of a quantity, the absolute amount of which is absolutely impossible to contain, and as a result, the Plaintiff did not have any choice but to produce them more than 182 minutes exceeding the total contract amount of 120 minutes.

2) In addition, at the time of the tender of the 2015 contract, the Plaintiff produced a sample of the convergence-type game in which the Plaintiff and the Defendant jointly received an investment, and based on this, proposed that it would be possible for the Defendant to produce the convergence-type game, which would have sufficient value. On November 2015, the Defendant ordered the Defendant to create the convergence-type game in which the Plaintiff could actually use. Although the Plaintiff’s production was impossible, the Defendant’s personnel ordered the Plaintiff to produce conditions, and the Plaintiff produced and supplied it around March 2016. At the time of announcement of the 2016 contract, the Plaintiff asked the Defendant to use the convergence-type game that the Plaintiff supplied to the Defendant from January 2017, but the Defendant asked the Defendant to revise it again from 2017 to 2017, which did not have any choice but had any choice but no choice but to use it. The Plaintiff expressed that the Plaintiff would have been able to use it for the production and distribution of the game in its entirety.

3) The above actions by the Defendant constitute a violation of the Subcontract Act, and thus, the Defendant is liable to compensate the Plaintiff for damages due to the violation of the Subcontract Act pursuant to Article 35 of the Subcontract Act.

(1) Violation of obligation to issue in writing under Article 3 of the Subcontract Act.

The Defendant continuously demanded correction, reworking, addition, and modification works to ensure that a quantity exceeding the original agreed learning framework is created with respect to the production of videos according to the contract in 2015 and 2016, and did not issue to the Plaintiff any document related thereto. In doing so, the Defendant did not issue to the Plaintiff any document regarding the order for the integrated game work and the correction work that are not entirely specified in the contract in 2015 and 2016, and did not issue to the Plaintiff any document related thereto. This is a violation of Article 3 of the Subcontract Act.

(2) Violation of the prohibition of unfair special agreements under Article 3-4 of the Subcontract Act.

As to the portion exceeding five minutes per minute in the case of a motion picture under a contract in 2015, the Defendant, according to a contract in 2016, had the subcontractor bear the expenses incurred in requesting matters not written, and had the subcontractor bear the expenses incurred due to a cause not attributable to the Plaintiff, which is the subcontractor, out of the expenses incurred in reworking, additional work, or repair work according to the Defendant’s order, which is the principal contractor. This is a violation of the prohibition of unfair special agreements stipulated in Article 3-4 of the Subcontract Act. Furthermore, the order of integrated game work and correction work also imposes the Plaintiff, the subcontractor, who is the subcontractor. Of the expenses incurred in reworking, additional work, or repair work according to the Defendant’s direction, which is the principal contractor, bear the expenses incurred by the subcontractor, who is the subcontractor, to the Plaintiff, who is the subcontractor.

In addition, when entering into the instant service contract with the Plaintiff, the Defendant: (a) placed Article 3(3) of the 2015 Agreement that is unilaterally unfavorable to the Plaintiff; and (b) placed Article 3(3) of the 2016 Agreement which provides that the Defendant, the principal contractor, may, without delay, demand the Plaintiff, who is the subcontractor; (c) the Plaintiff shall comply with the Defendant’s demand without delay even if any cause not attributable to himself; and (d) the additional production cost shall be borne by the Plaintiff; and (e) Article 9(2) of the 2015 Agreement and Article 11(2) of the 2016 Agreement which provides that the scope of the business may not be reduced or abolished due to any cause not attributable to the Plaintiff; and (e) set terms and conditions of the contract unreasonably infringing or restricting the Plaintiff’s interest, the subcontractor, who is the public broadcasting company, unilaterally favorable to and unilaterally; and (e) the Defendant’s act constitutes a violation of Article 3-4(1) and (2)1 and 34) of the Subcontract Act.

(3) Violation of Article 4 (1), (2) 4, 5, and 7 of the Subcontract Act prohibiting the determination of unreasonable subcontract consideration.

The Defendant directed the Plaintiff, a subcontractor, to engage in business different from the tender announcement and the contract, thereby causing errors in the terms and conditions of transaction, such as the ordered volume. The Defendant determined or notified the Plaintiff before the unit price per video tape of the contract in 2015 at the same or lower level as the content of J in 2013, which was performed on the Plaintiff’s side before the contract was executed. The Defendant directed the Plaintiff to divide a part 1 product produced by approximately 25 minutes in excess of the amount and five times of business determined in accordance with the contract in 2015 into two parts. The content produced thereafter did not entirely hinder the increase of the contract price or the change of the contract contract in the process, while the Defendant instructed the 8-9 minutes to be produced in the e-mail, the Defendant demanded the change of the contract price immediately before the contract was awarded by the Plaintiff for the contract in 2016. Ultimately, the Defendant’s act constitutes a violation of Article 4(1), (2)4, 5, and 7 of the Subcontract Act.

(4) Violation of Article 8 of the Subcontract Act, such as prohibition of revocation of unfair entrustment.

The Defendant continuously requested correction, re-work, addition, and modification work that is more than the original agreement in relation to the production of a dynamic image in accordance with the contract in 2015 and 2016, and subsequently modified the contract in 2015 and 2016 (the modification of the quantity of the dynamic image) unless there is any reason attributable to the Plaintiff, who is the subcontractor, as a result, even though there is no reason attributable to the subcontractor, which constitutes a violation of the prohibition of voluntary revocation or modification of entrustment under Article 8(1) of the Subcontract Act.

(5) Violation of the criteria, method, and time of inspection under Article 9 of the Subcontract Act.

The Defendant ordered the correction work on average 3 to 4 occasions and 7 occasions on the delivered video products, disregarding all the examination procedures agreed upon after the contract, and did not give written notice of the result of the inspection prescribed in the Subcontract Act in this process. In particular, the Defendant determined the very abstract and unclear inspection procedure that “the Defendant is unable to satisfy the intention of broadcast production” and justified the above act. The Defendant ordered the continued correction without disregarding all parts of the inspection procedure, subcontract law, practices in the field of animation production. This constitutes a violation of Article 9 of the Subcontract Act regarding the criteria, method, and timing of inspection.

(6) Violation of the prohibition of unfair interference in management under Article 18 of the Subcontract Act.

At the time of the tender in 2015, the Defendant forced 'K (representative L)' and the Plaintiff to make a bid by organizing a consortium, and the Plaintiff had no choice but to subcontract the production part of the contract in 2015 to K. This constitutes an unfair interference between management prohibited by Article 18 of the Subcontract Act.

B. Scope of liability for damages

The scope of specific liability for damages that the Defendant is liable to compensate for to the Plaintiff pursuant to Article 35 of the Subcontract Act is as follows:

(1) The scope of liability to compensate for damage caused by excess of a broadcast of motion pictures.

The defendant originally agreed 5 minutes (2015 contract) and 7 minutes (2016 contract). The defendant ordered 200 won to produce 200 won per five minutes (20 won) and 15 minutes (200 won per five minutes (20 won) and continuously demanded correction, addition, and modification work. As a result, the plaintiff's damages to be compensated by the defendant pursuant to the defendant's violation of the Subcontract Act are equivalent to 2015 and 200 won per five minutes (200 won per five minutes). In other words, in case of the contract of 2015, the defendant is liable to pay 11,00,000 won per five minutes (20 won per five minutes) to the plaintiff, and the amount exceeding 10,000 won per five minutes (200 won per one minute, 200 won per five minutes) and the amount exceeding 10,000 won per 10 minutes (20 minutes).

(2) Scope of liability for damages related to integrated game works and revised works.

The defendant ordered the production or correction of an integrated game without contract in 2015 and 2016. Accordingly, the plaintiff produced an integrated game for five months from November 2015 to March 2016, and operated an integrated game correction work for four months from January 2017 to April 2017. The plaintiff's expenses incurred during the above period are damages incurred to the plaintiff. The detailed details of the damages are KRW 77,780,000 as follows.

personnel expenses: 68,000,000 won

- Personnel expenses for five months for the production period: 15,00,000 (game planning and production management) personnel expenses for 15,000,000 (game planning and production management): 15,000,000 (game planning, problem production, Plaintiff’s preparation) personnel expenses for P: each 10,000,000,000 for foreign personnel expenses: 3,000,000 for the production period of four months: 15,000,000 for personnel expenses for M for 15,00,000,000 for the production period of four months: 5,00,000 (game planning, production management) personnel expenses for 0,000 won (game planning, problem production, and Plaintiff’s preparation): Personnel expenses for 5,00,0000,000 for 0,0000 won for the production period of four months:

○ Costs for traffic disputes over game production : 2,880,000

- - For Adbebec, 80,000 won per person monthly user fee and 4 employees for nine months;

○ Other expenses: 6,900,000

- The cost of mixing music and effects of game: 3,00,000 won (50,000 won x 5) for sexual ice ice ice in the original game: the cost of planning for 500,000 won (100,000 won X 5 hours): 900,000 won (10,000 won x 9 months) for 9 months

3. Determination

A. Determination as to the claim for damages due to a violation of the Subcontract Act in relation to excess of video mining units

1) Whether the Plaintiff produced videos beyond the scope set forth in the contract in 2015 and 2016

On the premise that the Plaintiff is a 120-minute (=5-minute X 24), which was produced by the Plaintiff pursuant to the 2015 contract, and that it was determined for 20-year 20-year 20-year 20-year 20-year 20-year 26-year 20-year 20-year 26-year 2016-year 26-year 206-year 2016-206-206-206-206-206-10-206-206-10-206-20-10-206-20-10-10-20-10-20-10-20-20-10-20-20-10-20-20-30-10-10-20-30-10-201-20

① Article 3(1) of the General Terms and Conditions of the 2015 and the 2016 2016 Agreement provides that “The content of the production of animation shall be the same as the content of the service”, and each service statement attached thereto shall include five minutes X 20 (2015 Agreement), standard R.T and number of production methods for the video that the Plaintiff should produce, as the standard terms and conditions of the 2015 and 2016 : seven minutes and seven minutes and 24 minutes (2016 Agreement) respectively. In addition, each service statement attached to the 2015 and 2016 x 25 minutes and 27 minutes of production or 2016 x 37 minutes of production or 24 minutes of production, which the Plaintiff is included in the 2015 and 2016 x 5 minutes of production or 37 minutes of production.”

② In particular, in the 2016-2016-201-201-201-200-2000-200-200-20-200-20-20-10-20-20-10-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-20-

③ Also, in the case of webN content, the standard page is written as “not less than 6 page or not less than 7 page,” and unlike this, if the video is written as “not less than 5 minutes or not less than 7 minutes”, it appears that the Plaintiff and the Defendant had in mind mind that the video is produced within the scope not exceeding 5 minutes or 7 minutes. However, it cannot be deemed that the premium of the video actually supplied by the Plaintiff is considerably more than 5 minutes or 7 minutes per minute.

④ The Plaintiff’s production process of motion pictures to be produced under the contract in 2015 and 2016 was 2D or 3D animation, but it is inevitable to increase production cost as the amount of animation increased. In light of such reality, it is difficult to view that the Plaintiff and the Defendant determined the content of the contract in 2015 and 2016 based only on the number of copies.

2) Occurrence of liability for damages 1

A) Whether liability for damages arising from a violation of the prohibition of unfair special agreements under Article 3-4 of the Subcontract Act exists

Article 3-4 (1) of the Subcontract Act provides that a prime contractor shall not set up a contract that unfairly infringes or restricts a subcontractor's interests (hereinafter referred to as "unfair special agreement"), and Article 3-4 (2) 4 of the same Act provides that "any agreement prescribed by Presidential Decree, such as restricting a subcontractor's interests protected by this Act or transferring a subcontractor's obligations imposed on a prime contractor to a subcontractor shall be regarded as an unfair special agreement, and Article 6-2 subparagraph 1 (c) of the Enforcement Decree of the Subcontract Act provides that "any prime contractor shall impose an agreement that imposes a subcontractor on a subcontractor to bear expenses incurred by a cause not attributable to a subcontractor, out of the expenses incurred by reworking, additional works, or maintenance works (referring to the prime contractor's declaration of intention for reworking, additional works, or maintenance works, regardless of the name of the prime contractor, such as

According to the above basic facts, the contractor under the General Terms and Conditions of the 2015 and the 2016 General Terms and Conditions of the 2016 Contract shall undergo an examination in accordance with the procedures set by the ordering person when the products are supplied.

As a result of the examination, if it is impossible for the plaintiff to meet the intention of production of the video, the ordering person may request the other party to the contract to revise or supplement it without delay: Provided, That additional production costs shall be borne by the other party to the contract: Provided, That the general terms and conditions of the service contract and the service specifications in 2015 and 2016 are stated only in the production form, standard R. T and production volume, and work contents to be produced by the plaintiff under the above service contract, and the contents of the production of the video are outlined, which can not be seen as an abstract standard regardless of the plaintiff's reasons attributable to the production, in light of the above 5-year contract, the plaintiff can request the plaintiff to revise or supplement it, and the plaintiff's additional production costs should be borne by the plaintiff; therefore, Article 3 (3) of the above general service contract terms and conditions which provide that the plaintiff's act of production in excess of the 20-year contract terms and conditions of the contract shall be deemed as violating Article 10-16 (3) of the subcontract Act.

In light of the above general terms and conditions of the service contract, Article 3(3) of the Defendant’s assertion that it constitutes a general provision inserted in the Plaintiff’s contract for content production. The Defendant did not instruct the Plaintiff to modify or supplement the contents of the contract within the scope of the content supplied by the Plaintiff, or to revise or supplement the scope ordinarily acceptable, such as scientific errors, audio and video products, within the scope of the content supplied by the Plaintiff. However, the following circumstances, i.e., the standard form of broadcast industry, which the Plaintiff did not contain any above provision, and the criteria and methods of inspection, are not objective, fair and reasonable, after consultation with the principal contractor, and it is difficult for the Plaintiff to view that the Plaintiff would have been subject to prior consultation with the principal contractor, and that the Plaintiff would have been subject to prior consultation with the principal contractor, and thus, it would be difficult for the Plaintiff to have been subject to prior consultation with the principal contractor and its entire method of production.

B) Whether liability for damages was incurred due to a violation of Article 4(1), 4(2)4, 5, or 7 of the Subcontract Act prohibiting the determination of unfair subcontract prices

First of all, as to whether the Defendant’s act constitutes “the act of causing mistake to the terms and conditions of transaction, such as the ordered volume of order,” under Article 4(2)4 of the Subcontract Act, the following circumstances acknowledged by comprehensively taking into account the following circumstances: (a) public announcement for entering into a contract in 2015 and 2016; (b) service contract, general terms and conditions of service contract, and service statement prepared at the time of entering into a contract in 2015 and 2016; (c) the increase in the number of video mining is difficult from the beginning in the process of performing a contract in 2015 and 2016; and (d) it is difficult to deem that the Defendant intentionally caused mistake to the Plaintiff on the terms and conditions of transaction; and (d) there is no evidence to acknowledge that the Plaintiff’s act exceeds the contract quantity and the quantity of video products produced during the process of rendering the service.

Next, in light of the fact that the Defendant’s act constitutes “an act of unilaterally determining the subcontract price by a low unit price” under Article 4(2)5 of the Subcontract Act, the Defendant’s act was about 25 minutes in light of the above basic facts and evidence Nos. 31, 32, 5, 6, and 28, and the overall purport of pleadings, which were produced by the Plaintiff under the contract for 2015, and that it was difficult for the Plaintiff to unilaterally determine the 20-year unit price by using the production method or 20-year unit price under the contract for 20-year unit price and 10-year unit price, and that the production cost of the 20-year unit price is less than the production cost of the 20-year unit price under the contract for 2015, the Plaintiff’s production cost of an animation and 20-year unit price for animation and 20-year unit price for animation produced by the government agency or other services, and the purport of the 215-year unit price agreement.

Furthermore, as to whether the defendant's act constitutes "an act of determining a subcontract price at a price lower than the minimum tender price without justifiable grounds when concluding a subcontract through competitive bidding under Article 4 (2) 7 of the Subcontract Act, the health class, and Article 4 (2) 29 of the former Act, as to whether the defendant's act constitutes "an act of determining a subcontract price at a price lower than the minimum tender price without justifiable grounds," the contract in 2016 was conducted by a private contract after the second bidding. This does not constitute "an act of determining a subcontract price at a price lower than the minimum tender price without justifiable grounds when concluding a subcontract through competitive bidding under Article 4 (2) 7 of the latter Act."

Therefore, this part of the plaintiff's assertion is without merit.

C) Whether liability for damages arising from a violation of Article 8(1) of the Subcontract Act, such as prohibition of revocation of unfair entrustment

Next, the defendant's act is in violation of Article 8 (1) of the Subcontract Act. As seen earlier, it is not sufficient to recognize that the evidence submitted by the plaintiff alone was changed to the entrustment at will by the defendant, and there is no other evidence to acknowledge otherwise.

3) Scope of liability for damages

As seen earlier, the Defendant violated Article 3-4(1) and (2) Subparag. 4 of the Subcontract Act, and the Plaintiff was produced in excess of the scope stipulated in the contract in 2015 and 2016 upon the Defendant’s instruction or request. The Plaintiff’s damages arising from the Defendant’s violation of the Subcontract Act are the expenses incurred by the production of a motion picture exceeding the scope of the contract in 2015 and 2016, without any cause attributable to the Plaintiff. It is reasonable to deem that this is the amount equivalent to the expenses for the portion produced in excess of the scope of the contract in 2015 and 2016.

As to this, the Plaintiff calculated losses by multiplying the unit price of KRW 11,00,00 per piece of video image determined in accordance with the contract in 2015 and 2016 by the amount of KRW 2,20,00,00 per unit price for each set of KRW 9,900,000 (i.e., KRW 11,000,000/5%) and KRW 1,414,285 (i.e., KRW 9,900,000/7) by the amount of excess mining. However, considering that the increase in the number of mining units, the Plaintiff cannot be deemed to have increased production costs by calculating the difference between the amount of damages incurred by the Plaintiff and the actual amount of damages incurred by the Plaintiff in comparison with the amount actually incurred by the Plaintiff in the contract, the Plaintiff cannot be deemed to have claimed that the difference between the amount actually incurred by the Plaintiff and the amount actually incurred by the Plaintiff in comparison with the amount of damages incurred by the Plaintiff in 2015.

However, in reality, Article 35(4) of the Subcontract Act provides that "Article 56-2 and Article 57 of the Monopoly Regulation and Fair Trade Act shall apply mutatis mutandis to cases where a lawsuit for claiming compensation is filed pursuant to paragraph (1) or (2) in consideration of the difficulty in calculating damages caused by a violation of the Subcontract Act," and Article 57 of the Monopoly Regulation and Fair Trade Act provides that "it is recognized that damage was caused by a violation of the provisions of this Act, but where it is extremely difficult to prove the amount of damages due to the nature of the relevant fact, the court may recognize a reasonable amount of damages based on the overall purport of the pleadings and the results of the examination of evidence." Furthermore, considering the following circumstances such as Gap evidence Nos. 2, 55, Eul evidence Nos. 28 and 29 and the overall purport of arguments, it seems that it is practically impossible to clearly distinguish whether the costs spent by the plaintiff were included in the scope of the contract, whether it exceeded the scope of the contract, and whether it was used in the production cost of the plaintiff for two-year 2016.

When one company has set 10 minutes as 10 minutes, 1.5 times the amount set as 5 minutes when it was set as 5 minutes (=1.5 times the amount set as 1.0 billion won; 2.2 times the amount set as 5 minutes when it was set as 15 minutes; 31,515,00 won per 30 minutes; 10 minutes when it was set as 42,596,00 won per 10 minutes (5 minutes; 1.35 times the amount set as 5 minutes); 40% of the amount set as 10% of the amount set as 15 minutes in accordance with the contract; 40% of the amount set as 20% of the amount set as 5 minutes in excess of 5 minutes; 40% of the amount set as 10% of the amount set as 5 minutes in excess of 5 minutes in consideration of the contract set as 10% of the amount set as 5 minutes in excess of 5 minutes.

4) Limitation on liability for damages

However, the Plaintiff and the Defendant did not completely exclude the possibility of reduction if the price was calculated through consultation, and the increase that is the same as a video mining unit is a whole process of providing services. It is difficult to view that the Defendant had to produce a video product in excess of the mining unit stipulated in the contract from the beginning, and that the Plaintiff would have concluded a contract in 2015 and 2016. The Plaintiff would have to have been able to have been engaged in the 2015 contract in 2016 and concluded a contract again with the Defendant by a negotiated contract in 2016, with the knowledge of the fact that it would have been inevitable for the Plaintiff to participate in the bidding of 2016 contract in 2016 and concluded the contract again with the Defendant in 2016. Therefore, it is reasonable to limit the Defendant’s liability for damages under the principle of fairness, taking into account the circumstances revealed in the process of concluding the contract in 2015 and implementing the contract in 2016.

5) Sub-decisions

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at each rate of 104,581,688 won per annum under the Civil Act from July 21, 2018, the following day after the delivery date of a copy of the complaint of this case sought by the Plaintiff for compensation for damages caused by a violation of Article 3-4 (1) and (2) 4 of the Subcontract Act, to the Plaintiff at least 5% per annum under the Civil Act until December 17, 2020, and 12% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day until the day of complete payment.

B. Determination on the claim for damages relating to the integrated game production and revised work

1) Considering the overall purport of the statements and arguments set forth in the Evidence Nos. 4, 36, 52, 53, and Nos. 21, 22, and 23, it is recognized that the Defendant and the Plaintiff, and the K in charge of the K in charge of the integrated game work and revision thereof were exchanged with each other, such as holding a meeting, etc., and that the Defendant’s employee R sent the Plaintiff by e-mail the explanation materials, etc. of the K inca Support Project in 2016.

2) However, the following circumstances acknowledged by the Defendant comprehensively taking account of the Plaintiff’s evidence Nos. 2, 5, 6, 11, 19, and 20 evidence, the witness testimony and the entire purport of the pleadings, namely, ① there is no entry of an integrated game in the tender announcement, tender proposal, and subsequent bidding terms negotiation details, submitted by the Plaintiff, and the price proposal, 2015, and 2016 contract were not entered in the integrated game. ② there is no limitation that the Defendant shall report or obtain prior approval on the Plaintiff’s consumption of production costs as a public corporation, and there is no evidence to acknowledge that the Defendant did not appear in this court as a witness, which was involved in the integrated game, and that there was no other evidence to acknowledge that the Plaintiff did not incur losses due to the Plaintiff’s failure to reach an integrated game contract or reach an agreement, or that there was no other evidence to acknowledge that the Plaintiff did not incur losses due to the Plaintiff’s production costs.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, a judge and a judge;

Judges Lee Jong-soo

Judges No. Rool

1) Each of the damages suffered by the Defendant by asserting that the Defendant violated Articles 3, 3-4, 4, 8, 9, and 18 of the Subcontract Act.

'2015' and '2015' for damages suffered by the defendant due to the defendant's violation of each of the above subcontract laws and regulations, not different claims for each provision.

It argues that "the amount equivalent to the production cost for the portion manufactured in excess of that agreed upon in the contract in 2016," and that the following regard is below:

As long as a violation of Article 3-4 of the Subcontract Act is recognized, it shall not exceed three times the damages under Article 35(2) of the Subcontract Act.

In addition to the violation of Articles 4 and 8 (1), there is no practical benefit to determine whether a subcontract violates any other provision, which shall be liable to compensate for within the scope of such violation;

There should be a proximate causal relationship between the act of violation of law and the amount of damages, and the violation of Articles 3, 9, and 18 other than Article 3-4 of the Subcontract Act.

Since it is difficult to see that there is a proximate causal relation between the damages claimed by the Plaintiff, the following Articles 3-4, 4, and 8 of the Subcontract Act.

In addition to the fact of violation of paragraph (1), the remaining arguments shall not be judged separately.