2015dan536823 Service Fees

A

Non-DS Partnership Co., Ltd.

May 25, 2017

June 22, 2017

1. The defendant shall pay to the plaintiff 32,452,516 won with 6% interest per annum from January 29, 2016 to June 22, 2017, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 5% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 3,184,984 won with 6% interest per annum from September 22, 2015 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. Basic facts

On June 19, 2015, the fact that the Defendant entered into a service contract with the non-party 1 (hereinafter referred to as "the instant service contract") to pay 2.7% of the parcelling-out price if the sales contract for the instant commercial facilities was concluded between the Plaintiff and the Plaintiff operating real estate sales business on June 26, 2015 (hereinafter referred to as "the instant service contract") is either a dispute between the parties or by adding the entire purport of pleadings to the written evidence No. 3.

2. The parties' assertion

A. The plaintiff

Upon entering into the instant service contract, the Defendant agreed to pay the Plaintiff the full amount of the service cost when the down payment equivalent to 10% of the sales price is deposited. The sales contract for the stores of 112, 115, 116, 202, 203, and 204 among the instant commercial facilities was concluded due to the Plaintiff’s business activities, and the said buyers paid the down payment by September 21, 2015.

Under the instant service contract, as of September 21, 2015, the Defendant was obligated to pay the Plaintiff KRW 78,973,174 in total equivalent to 2.7% of the sales price of each of the said stores (including value-added tax, and the remaining stores are excluded from value-added tax) (However, 1.4% for subparagraph 16). Of them, the Defendant was obligated to pay KRW 30,867,610 in total, and KRW 14,920,580 in total, and paid the remainder KRW 33,184,984,984 in total, and delay damages. Accordingly, the Defendant is obligated to pay the Plaintiff the unpaid service cost to the Plaintiff.

B. Defendant

Of the Plaintiff’s respective stores, the duty of non-payment for the sales contract for the remaining stores except subparagraph 115 does not dispute the duty of payment for the services. However, since the sales contract was concluded prior to the Defendant’s conclusion of the sales contract, the Defendant is not the subject of payment for the services cost.

Except for 115, the service cost that the Defendant is obligated to pay to the Plaintiff is KRW 63,842,00. The service cost that the Defendant is obligated to pay to the Plaintiff is KRW 30,867,610 on September 25, 2015, KRW 360,000 on November 13, 2015, and KRW 12,768,40 on November 13, 2015. Upon receipt of the service cost from the executor, the Defendant pays to the Plaintiff the part corresponding to the agreement with the Plaintiff. Upon receipt of the contract for sale in lots, the Defendant pays the service cost to the Plaintiff; KRW 80,842,00 on the payment of the contract for sale in lots, and KRW 20,768,40 on the payment of the intermediate payment is equivalent to KRW 20% on the payment of the intermediate payment. The Defendant’s payment of the outstanding service cost is equivalent to KRW 12,768,400 on the part of the Plaintiff.

3.Flag

(a) Scope of stores eligible for service costs;

1) The Commercial Facilities 112, 116, 202, 203, 204

There is no dispute between the Plaintiff and the Defendant regarding the fact that the sales contract for each of the above stores is subject to the payment of service costs under the instant service contract.

2) The instant commercial facilities No. 115

A) The fact that the above 115 was originally No. 111, and the alteration of the internal structure was made by the change of the internal structure is not clearly disputed between the parties, and that the change was made by Gap No. 10 and Eul No. 3.

According to the statement, on April 30, 2015, the non-party D entered into a conditional trading agreement with the regional housing association and the previous commercial facilities 111 won (with respect to non-party D's 632,170,974 won on the condition that the pre-sale price may occur after the public offering of two or more persons by open recruitment, the sales contract will be entered into within seven days from the notification at the time of fulfillment of the conditions; hereinafter the same shall apply). The defendant entered into a contract with the Taewon F&A on June 19, 2015 with the defendant for the pre-sale agency service to be conducted by the defendant under Article 3 of the "Contract for the Sale Agency Services" which was entered into with the defendant on June 19, 2015.

B) On the other hand, in addition to the overall purport of arguments in the order of submission of each of the above evidence No. 4-2, No. 5-2, No. 7-2, No. 6-2, and No. 6-2, and each of the above evidence No. 4-2, No. 5-2, No. 6-2, and each of the above evidence No. 2, No. 6-2, No. 5-6 of this Court's new bank, one stock company, and one asset trust (hereinafter "property trust") to each of the above financial transaction information submission orders, i.e., B-house Association on August 25, 2015 and the commercial facilities No. 115, i.e., 600 won for each of the above 60-2, No. 9650, Jun. 25, 2015; 205, 206500 won for each of the above money deposited in B-6, No. 2615,5065,

C) According to the facts found in the above Paragraph (b) above, after the Defendant entered into a contract with Taewon LAW for the service of the sales agency, D entered into a new conditional sales agreement with regard to No. 115 of the commercial facilities of this case through the Plaintiff. The above sales agreement does not coincide with the conditional sales agreement as to No. 111 of this case, the number of units, size, and estimated sales price, etc. as to No. 111 of this case.In light of the circumstances such as the fact that the sales agency fee for No. 115 of the above 115 was paid to Taewon LAW, and that the above money is deemed to have been paid again to the Defendant in light of the deposit payment date and amount, it is reasonable to deem that No. 115 was a store for which the sales contract was concluded in accordance with the Plaintiff’s business activities, and is subject to the payment of service

B. Service costs under the instant service contract

According to Gap evidence 4-1 to 6, the sales amount of a store subject to payment of service costs and the amount excluding value-added tax can be recognized as having the same facts as indicated in the table corresponding to the following table (However, the defendant does not have any grounds for the reduction of less than one million won, but it does not have any grounds for such reduction). In the calculation of service costs due to sale, 2.7% of the sales amount excluding value-added tax, shall be calculated as 1.4% of the sales amount, and 116% of the sales amount, excluding value-added tax, shall be calculated as 1.4% of the sales amount, and 3.3% of the business income tax shall be withheld, and the defendant's assertion is consistent with this opinion.

However, in the calculation of service costs under 115, the Plaintiff asserted that he agreed with the Defendant to receive 2.7% of the sales amount including value-added tax, but there is no evidence to acknowledge it, and thus, it shall be based on the sales amount excluding value-added tax as recognized by the

If service charges are calculated after withholding on the basis of sales price other than value added tax, the following table:

It is clear that the entry amount is the amount in the appropriate column (However, the defendant is not able to find the grounds for the reduction of less than KRW 1,000, but it is not possible to find the grounds, and it is calculated as shown below in the corresponding column).

(unit: source)

Before (1) 2) 112F794,80,000,0761,021,0020,547,507,7507,7507,7507,7507,408288216G8216,0075,200,00838,000838,0004,00404,007,25067,83207,408284,507,408408,507,408287,407,407,407,508408,407,507,407,407,507,407,407,507,6307,407,507,407,6308,6207,6306,6307,407

(1) Service costs prior to withholding = X2.7% (Provided, That 116No. 1.4%) of the sales price excluded from value-added tax

(2) Service costs after withholding = Service costs before withholding x (100 - 3.3)

Therefore, the service charges that the defendant shall pay to the plaintiff under the service contract of this case shall be withheld from the above table.

78,240,706 won, such as the subsequent description in the aggregate column.

C. Scope of accrued service costs

1) Of the above service costs, the Plaintiff received KRW 30,867,610 on September 25, 2015, and KRW 14,920,58,190 on November 13, 2015; and KRW 45,788,190 on November 13, 2015, and except for those, the Defendant’s unpaid service costs are KRW 32,452,516 (i.e., KRW 78,240,706 - KRW 45,78,190).

2) The Defendant alleged that the Plaintiff paid KRW 3.6 million to the Plaintiff in addition to the above money. Thus, the Defendant’s payment of KRW 3.6 million to the Plaintiff on September 30, 2015 is no dispute between the parties. However, the Plaintiff’s payment of the said money to the Plaintiff on September 30, 2015 is not a service charge, but a dispute between the parties. However, the Plaintiff’s payment of KRW 9.1 million to the Plaintiff by sharing the Plaintiff’s share of the Plaintiff and the Defendant’s share of the sales contract for the commercial facilities of this case.

Of them, the defendant's share 3.64 million won is proved.

In light of the following facts, the fact that the above money was deposited into the service cost is proved by the defendant, and it is not sufficient to recognize that the defendant paid the above money to the plaintiff as part of the service cost as alleged by the defendant (the above money appears to have been paid to H through the plaintiff according to the letter of non-performance as of August 15, 2015, considering the following facts), and there is no other evidence to recognize it. Accordingly, the defendant's above assertion is rejected.

As of August 15, 2015, I, the head of the headquarters of the plaintiff and the defendant, prepared a document stating "6:4:360,000 won in the margin amount to be paid on September 30, 2015" under the title "I: the head of the I: the head of the I: the head of the I: the head of the I: the head of the I: the head of the I: the head of the I: the head of the team, respectively, sign a document stating "I: the head of the I", "I: the head of the I: the head of the I: the head of the I: the head of the team, respectively, in the name of the A.

O On September 30, 2015, the date of payment stated in the above letter, the Defendant deposited 3.64 million won in the Plaintiff’s bank account as stated in the above letter, and on the same day, the Plaintiff deposited 9.1 million won in H, the purchaser of each of the above stores, as stated in the above letter.

(d)the starting point of counting damages for delay;

With respect to the payment date of service fees, the Plaintiff asserts that the Defendant agreed to pay the whole amount of the service fees when the down payment amounting to 10% of the parcelling-out price is paid, and that the Defendant received the sales agency fees from the executor and agreed to pay 80% of the down payment at the time of the payment of the down payment and 20% at the time of the intermediate payment.

The fact that the Defendant entered into a contract for payment of service charges at a different time, as recognized by the Defendant, is liable to prove that the Plaintiff is liable to prove it. However, it is not sufficient to recognize only the statement of No. 6, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion on this is without merit

However, in the case of this case, one asset trust pays the amount equivalent to 80% of the total commission on September 24, 2015 to the bank account of Taewon T&A, and the amount equivalent to 20% of the commission on January 29, 2016, and around that time, it appears that Taewon L&A would have paid to the Defendant the sales agency fees (service fees) under the sales agency service contract. Accordingly, the Defendant shall be deemed to have received the full settlement of the sales agency fees from the executor around January 29, 2016. Accordingly, even according to the Defendant’s assertion, the Defendant was liable to pay the remainder of the service fees to the Plaintiff from January 29, 2016. Thus, the Defendant bears the obligation to pay damages for delay with respect to unpaid service fees from January 29, 2016.

(e) Conclusion

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 32,452,516 won and 15% per annum under the Commercial Act from January 29, 2016 to June 22, 2017, which is the date of the judgment that is appropriate for the Defendant to dispute about the existence or scope of the obligation to perform as to the existence or scope of the obligation.

4.In conclusion

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

Judges Kim Young-young