2015 Gohap567 Appeal against the final claim inspection judgment

Cryst Handy C S. A.) Cryst Hand Hand Hands (Cryst Ha.)

A, B, the joint management of the original fishing boat Co., Ltd., the debtor;

December 22, 2016

January 19, 2017

1. The plaintiff's claim is dismissed.

2. The Busan District Court shall authorize the final inspection judgment of 2012 dated December 16, 2014 and the final inspection judgment of 2012.

3. The costs of lawsuit shall be borne by the Plaintiff.

Busan District Court Decision 2012Ma59 dated December 16, 2014 changed the rehabilitation claim inspection judgment as follows. The rehabilitation claim of the original UN Shipbuilding Co., Ltd. of the Plaintiff is USD 7,237,752.

1. Basic facts

A. Sales contract between the Plaintiff and the Oral Shipbuilding Co., Ltd.

1) On July 11, 2007, a shipbuilding contract was entered into between Chang Name Shipping Co., Ltd. (hereinafter referred to as " Chang Name Shipping Co., Ltd.") and original shipbuilding Co., Ltd. (hereinafter referred to as "original shipbuilding") with the aim of shipbuilding and repair of vessels, etc. (hereinafter referred to as "original shipbuilding") with the shipbuilding cost of USD 33,800,000 for the vessel of this case (hereinafter referred to as "the vessel of this case"). The main contents of the contract of this case are as follows.

Section 10.2 Payment of the price for the vessel shall be made in accordance with the following methods. (a) In the event that the purchaser of the vessel was bound to pay the price for the purchase and sale of the vessel at the same time after the date of the shipbuilding agreement: (b) in the event that the purchaser of the vessel was bound to pay the price for the purchase and sale of the vessel under this Section; (c) in the event that the purchaser of the vessel was bound to pay the price for the purchase and sale of the vessel under this Section; (d) in the event that the purchaser was bound to pay the price for the purchase and sale of the vessel at the same time before the date of the shipbuilding agreement; (e) in the event that the subsequent purchase and sale of the vessel was effected by the purchaser of the vessel under this Section; (e) in the event that the subsequent purchase and sale of the vessel was not effected by the purchaser; and (e) in the event that the purchaser was bound to pay the price for the purchase and sale of the vessel under this Section, the purchaser shall be deemed to have paid the price for such sale and sale immediately as follows:

2) On September 10, 2007, the Plaintiff was a company established in accordance with the laws of the Republic of Pakistan for the purpose of owning a ship, and entered into an open agreement by converting the status of Changsung Shipping, Oral Help Shipping, Oral Help Shipping, and Changsung Shipping under the instant contract to the Plaintiff from the Changsung Shipping. The Plaintiff paid USD 6,760,000 for the advance refund amount from Oral Lighting Shipping immediately after receiving the advance refund guarantee from the Oral Help Shipping.

(b) Decision on the commencement of rehabilitation procedures for original fishing boats and cancellation of contracts of this case;

1) On March 22, 2012, the original shipbuilding was decided by Busan District Court 2012 Gohap3 on March 22, 2012, and A and B were appointed as a joint manager of the original shipbuilding, the debtor for rehabilitation (hereinafter referred to as "the defendant" in both A and B, the joint manager of the original shipbuilding and original shipbuilding).

2) Meanwhile, from January 2009, the Plaintiff and the Defendant sent from around January 2009 a letter to the effect that there was a dispute over the schedule of the construction process of the ordered vessel including the instant vessel, etc., and the Plaintiff’s side sent a letter to the Defendant that it cannot comply with the unilateral construction process and the request for advance payment.

3) Notwithstanding the Plaintiff’s objection, the Defendant, on April 22, 2009, cut the steel cutting of the instant vessel and notified the Plaintiff of it, but the Plaintiff did not pay the second advance. The Defendant notified the Defendant that the instant contract was cancelled on November 5, 2009. Thereafter, on October 7, 2010, the Defendant’s rescission of the instant contract is null and void, and the Defendant’s notification of the rescission of the contract constitutes the Defendant’s declaration of non-performance, and thus, the Plaintiff notified the Defendant that the instant contract was cancelled on the ground of the Defendant’s refusal of performance.

(c) Rehabilitation claims inspection judgment;

1) The Plaintiff filed a claim for advance return of USD 7,237,752 against the Defendant due to the rescission of the instant contract, with the Defendant’s rehabilitation procedure, claiming that the said money had been paid as a rehabilitation claim, and the Defendant denied all the Plaintiff’s claim return amount.

2) Accordingly, the Plaintiff filed an application with the Defendant for the final claim inspection judgment with Busan District Court 2012.59, and on December 16, 2014, the said court rendered a final claim inspection judgment with respect to the Defendant (hereinafter referred to as the “instant decision”) to confirm that there is no rehabilitation claim against the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 48, Eul evidence Nos. 1, 2, 5, 16, 32, and the purport of the whole pleadings

2. Judgment as to the main claim

A. The parties' assertion

1) The plaintiff's assertion

The Defendant did not make a lawful steel cutting in a state where the instant vessel cannot be constructed normally due to lack of building capacity and funds, and notified the Plaintiff of the cancellation of the instant contract in a case where the payment of the second advance payment pursuant to the instant contract is delayed. This constitutes an abuse of right based on the intent of the Defendant to use the advance and cause damage to the Plaintiff only without performing the contract, and constitutes an obvious declaration of non-performance refusal that the Defendant would not perform the Defendant’s duty of prior performance under the instant contract. Accordingly, the Plaintiff rescinded the instant contract on the ground of the Defendant’s refusal of performance. The Defendant is obliged to refund the Plaintiff the first advance payment of USD 6,760,000 paid by the Plaintiff and the delay damages therefrom.

2) The defendant's assertion

The defendant made lawful cutting and notified the plaintiff of it, but the plaintiff did not pay the second advance, and the defendant company lawfully rescinded the contract of this case on November 5, 2009 on the ground of the plaintiff's default. Under the contract of this case, the defendant has the right to hold the advance payment received from the plaintiff. Thus, the plaintiff's assertion on a different premise is without merit.

B. Determination

1) Facts of recognition

The following facts may be acknowledged in light of the purport of the whole pleadings in each of the statements stated in Gap evidence 3, Eul evidence 1 through 5, 8, 10, 14, 19, 23 through 25.

① 선박건조의 주요 공정은 'ⓐ 강재절단(steel cutting : 선박건조에 사용될 강재를 절단하는 작업), ⓑ 용골거치(keel laying : 강재로 만들어진 블록을 조립 및 용접하여 선체를 만드는 작업), ⓒ 진수 , ⓓ 시운전, ⓔ 완공, ⓕ 인도의 순서로 이루어지는데, 선박건조에는 초기 투입비용이 많고 그 비용 또한 고액이므로, 선박건조계약은 선박건조가 완공되고 선박이 인도된 후에 선박대금을 일시에 지급받는 것이 아니라, 각 공정마다 선박건조대금을 선수금으로 분할하여 지급받는 형태로 진행된다.

② The instant contract also provides that the buyer shall pay the advance payment to the drieder in installments at each stage of work. Among them, the date and time of the second advance payment shall be within three business days from the date on which the buyer received the notice from the drieder that the drieder performed the steel cutting. There is no provision on any procedural and substantive requirements regarding the implementation of the steel cutting which serves as the basis for the time of payment.

③ On April 3, 2009, the Defendant notified the Plaintiff that the steel cutting exercise of the instant vessel was scheduled to be held on April 22, 2009, and requested the Plaintiff to attend the Plaintiff’s side in writing. On the same day, the Defendant was scheduled to implement the steel cutting exercise of the instant vessel at the culpule Heavy Industries’s establishment, and requested the Plaintiff in writing to prepare cutting equipment, safety caps, event standing signboards, etc.

④ However, on April 22, 2009, the Plaintiff did not participate in the steel cutting event at the above date, and the Defendant notified the Plaintiff of the fact that the steel cutting was carried out with the certificate of steel reexamination, the steel cutting drawing, and the photograph of the steel cutting event, etc., and requested the Plaintiff to pay the second advance payment by April 27, 2009. However, the Plaintiff requested the Defendant to prepare materials suitable for the steel cutting and implement it again.

⑤ The steel materials used for the steel cutting of the instant vessel, at the time of the manufacture in the steel mill, completed the electric power processing work (spring: removing melt and springs generated from steel and preventing melting smoke, etc.) and arrived at the sub-business upon the Defendant’s request.

④ The Plaintiff did not pay the second advance payment to the Defendant by April 27, 2009, and the Defendant notified the Plaintiff of the cancellation of the instant contract without paying the second advance payment within seven days from July 30, 2009. Nevertheless, the Defendant notified the Plaintiff of the cancellation of the instant contract on November 5, 2009.

7) On the other hand, from January 7, 2009, the Plaintiff pointed out the delay in the process to the Defendant from around January 7, 2009, and requested an inspection of steel materials, etc. purchased by the Defendant as the first advance of the vessels 1 and 2, and opposed to the cutting of force. Moreover, the Plaintiff also requested an explanation as to whether the process has been carried out according to the schedule of process set by the Defendant, and a request was made to inform the construction schedule, etc. of the luminous vessel, which is the place where the construction

8. The Plaintiff and the Defendant did not file an application for arbitral proceedings before filing the instant lawsuit.

2) Whether the termination of contract by the defendant on November 5, 2009 is legitimate or not

A) In order for the Plaintiff to have the right to claim the return of advance payment against the Defendant, the contract of this case is still valid since the termination of the contract on November 5, 2009 by the Defendant is not effective. Therefore, first, whether the contract of this case was lawfully rescinded by the Defendant’s notice of cancellation on November 5, 2009.

B) As long as the formation of a disposal document is recognized as authentic, the court shall recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable counter-proof that the content of the document is denied. In a case where there is any difference between the parties regarding the interpretation of a contract and the interpretation of the parties’ intent expressed in the disposal document is at issue, the court shall reasonably interpret the document in accordance with logical and empirical rules by comprehensively taking into account the contents of the language and text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent (see, e.g., Supreme Court Decisions 2002Da6753, Jun. 11, 2002; 2010Da60172, Aug. 17, 2012)

Pursuant to Article 10 of the contract of this case, the purchaser shall pay the second advance payment within three business days from the date of receipt of the notice of performance of the steel cutting from the drieder. The said advance payment cannot be delayed or reserved for reasons of any dispute or disagreement between the parties, and any dispute shall be settled pursuant to the arbitration clause. Meanwhile, as stipulated in the contract, the buyer shall immediately refund the advance payment the buyer paid and interest thereon when the contract is cancelled, cancelled, or terminated, and the drieder shall issue an advance refund guarantee issued to the buyer as the beneficiary in order to secure the refund of such advance payment and deliver it to the buyer. In addition, under Article 11 of the contract of this case, if the advance payment is not paid to the drieder within seven days from the date of receipt of the notice of performance of the steel cutting, the drieder may cancel the contract of this case, and in this case, the drieder may possess the advance payment paid by the Buyer, thereby appropriating up compensation for damage caused by the cancellation of the construction contract.

However, as seen earlier, the Defendant carried out the steel cutting on April 22, 2009 for the instant vessel and demanded the Plaintiff to pay the advance payment within five days from the time of notifying the Plaintiff. Nevertheless, the Plaintiff did not pay it within the said period, and did not file an application for arbitration, the only method to deal with the unreasonableness of the Defendant’s request for advance payment under the instant contract. On July 30, 2009, the Defendant notified the Plaintiff’s nonperformance of obligation and expressed an intention to cancel the instant contract to the Plaintiff on November 5, 2009, after three months elapsed from the date of the Plaintiff’s default. Accordingly, the instant contract was rescinded on November 5, 2009 due to the Plaintiff’s nonperformance, and the Plaintiff has no right to claim the advance payment against the Defendant.

C) Meanwhile, the Plaintiff filed a claim for advance payment with the Plaintiff while making the Defendant’s failure to carry out the steel cutting event. ② Even if the Defendant held the steel cutting event, the original shipbuilding did not constitute an effective steel cutting for which the Plaintiff may request advance payment, even though the term of the fund was aggravated in the process of receiving at least 14 shipbuilding contracts within a short period and newly constructing the luminous shipbuilding station, and even though the financial institution was unable to actually build the vessel in the process of constructing the luminous shipbuilding station, it did not formally force the steel cutting for the purpose of using advance payments, and thus, it does not constitute an effective steel cutting for which the Plaintiff may request advance payment.

① In addition to the purport of the entire argument in relation to the argument, the original Titian did not appear to have actually performed the steel cutting event on April 22, 2009, and the entries of the evidence Nos. 2, 52, and 53 in the original Titrates cannot be deemed to have requested the Plaintiff to pay the second advance payment, under the presumption that the original Titrate did not actually carry out the steel cutting event and did not actually carry out the steel cutting event.

(2) In light of the purport of oral arguments as to the argument above, the following facts are acknowledged: (a) the Defendant, at the time of exercising the force-building of the instant vessel, is suspected to have not been able to deliver the instant vessel to the Plaintiff on the payment date without holding sufficient funds to complete the construction of the instant vessel; (b) the requirements and procedures for the force-building of the instant contract; and (c) the financial requirements required of the Plaintiff to pay the advance payment to the Defendant, unless otherwise stipulated in the above circumstances alleged by the Plaintiff, namely, the Plaintiff cannot be deemed to have satisfied the requirements and procedures for the force-building of the instant contract; and (d) the reasons that the instant contract does not stipulate, such as the Plaintiff’s possession of sufficient funds at the time of the force-building of the instant vessel; and (e) the Plaintiff’s possession of sufficient funds at the time of performing the force-building of the instant vessel; and (e) the Plaintiff cannot refuse to pay the advance payment on the ground of the aforementioned reasons.

Furthermore, in the event that a dispute arises with the Defendant or is likely to arise, the Plaintiff was able to file an application for arbitration procedures that indicate that the instant contract was the only method for resolving the dispute on advance payment, but the Plaintiff did not take such procedures before the instant lawsuit was filed, and the Plaintiff was in the position to be entitled to refund advance payment based on the advance payment guarantee form in the event of the Defendant’s nonperformance. The requirements for the Defendant’s claim for advance payment under the instant contract, the Plaintiff’s requirements for the Plaintiff’s nonperformance of obligation, and the Plaintiff cannot delay advance payment on the grounds of any dispute or disagreement. In full view of the fact that the buyer cannot reject the application for advance payment in the event of the cause for the payment under the contract, and that the refund of advance payment is a guarantee for advance payment in the event of the Plaintiff’s nonperformance of obligation, etc., it is difficult to deem that the Plaintiff was entitled to refuse advance payment under the instant contract even if there was doubt that the Plaintiff was not equipped with funds or ability to continue building construction from the Plaintiff’s point of view at the time of the Defendant’s strong cutting.

3) Sub-determination

Since the contract of this case was lawfully rescinded by the defendant's notice of cancellation on November 5, 2009 due to the plaintiff's default, the defendant can hold the advance payment received from the plaintiff pursuant to Article 11 (2) (e) of the contract of this case. Thus, the plaintiff cannot claim the return of the advance payment to the defendant. Therefore, the plaintiff's main claim is without merit.

3. Judgment on the conjunctive claim

A. The plaintiff's assertion

Since the advance payment that the Plaintiff paid to the Defendant constitutes an estimate of damages, it may be reduced where the amount is excessive. However, even if the instant contract was rescinded due to the Plaintiff’s nonperformance, and the Defendant has the right to hold the advance payment, the amount should be reduced excessively and excessively.

B. Determination

In the event that Article 11(2)(e) of the instant contract cancels the shipbuilding contract on the ground of the buyer’s default, the drieder has the right to hold advance payments already paid to compensate for the buyer’s default and the buyer’s losses and losses incurred due to the rescission of the shipbuilding contract. The fact that the instant contract was lawfully rescinded upon the cancellation of the contract from November 5, 2009 by the Defendant due to the Plaintiff’s default is as seen earlier.

However, there is no evidence to acknowledge that the amount of advance payment received by the defendant is excessive, as alleged by the plaintiff, so this part of the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's main claim and conjunctive claim are all dismissed as it is without merit, and the decision of this case is just, and it is decided as per Disposition by the assent of all participating Justices.

Judges Lee Don-chul

Judge Gangnam-gu

Judge Choi Jin-hun