2016 Ghana 5109737 Return, etc. of down payment

P.D. C.C.

1. A;

2. Seoul Guarantee Insurance Co., Ltd.

November 4, 2016

November 25, 2016

1. The Plaintiff:

(a) Defendant A shall pay 38,500,000 won and 28,500,000 won among them, 6% per annum from August 20, 2015 to June 23, 2016; 15% per annum from the next day to the date of full payment; and 10,000,00 won with interest per annum of 15% per annum from June 24, 2016 to the date of full payment;

B. The Defendant Seoul Guarantee Insurance Co., Ltd. jointly with the Defendant A and jointly pay the amount of KRW 5,181,818 and the amount of KRW 15% per annum from June 3, 2016 to the date of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit, 60% of the portion arising between the Plaintiff and the Defendant A shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant A, and the portion arising between the Plaintiff and the Defendant Seoul Guarantee Insurance Co., Ltd

4. Paragraph 1 can be provisionally executed.

As to the Plaintiff, Defendant A paid 89,490,000 won and 28,50,000 won among them, 6% per annum from 2015,8,200 to the service date of the copy of the instant complaint, and 15% per annum from the next day to the day of full payment, with interest of 60,90,00 won per annum from the delivery date of the copy of the instant complaint to the day of full payment. Defendant Seoul Guarantee Insurance Co., Ltd jointly with Defendant A, and with Defendant A, with interest of 5,181,818 won from the delivery date of the instant complaint to the day of full payment, and with interest of 15% per annum from the day of full payment.

1. Claim against the defendant A;

(a) Description of the claim;

Among the grounds for the attached Form, the part of the defendant A shall be as follows.

(b) Applicable provisions;

Confession Judgment (Article 208 (3) 2 of the Civil Procedure Act)

C. Part of the partial c)

The agreement on compensation for delay has the nature as a scheduled amount of damages, barring any special circumstances, and where the amount of compensation for delay calculated under the agreement is deemed unfairly excessive beyond the permissible limit for ordinary people to pay, in consideration of all the circumstances, such as the status of a contracting party, purpose and contents of the agreement, the anticipated motive for the liquidated damages, actual damages, comparison of the liquidated damages, and the liquidated damages, and the transaction practices at the time and economic conditions, etc. under Article 398(2) of the Civil Act, such amount of compensation for delay calculated under the agreement may be reduced unfairly (see, e.g., Supreme Court Decision 201Da1386, Sept. 4

In light of the above legal principles, the following circumstances, namely, the damages rate of delay (1/100 of the contract amount) stipulated in the above contract, which can be added to the entries in Gap evidence Nos. 4, Gap evidence No. 5 (including paper numbers) and the above facts admitted, seems to be somewhat excessive, in other words, the damages rate of delay (1/100 of the contract amount) stipulated in the above contract, even if the contract completion date fell under September 18, 2015, the plaintiff sent a certificate of contents demanding construction progress to the defendant A by November 13, 2015, and the plaintiff taken active measures by November 13, 2015, and the damages for delay calculated by the plaintiff exceeds the contract amount of the above contract, shall be unfairly excessive, and thus, the damages for delay shall be reduced to 60,90,000 won calculated by the plaintiff, which shall be reduced to 10,000,000 won.

2. Claim against the defendant Seoul Guarantee Insurance Co., Ltd.

(a) Basic facts;

1) Defendant A entered into a contract with the Plaintiff by setting the contract amount of KRW 57,00,00 (including value-added tax) and the contract period from June 17, 2015 to September 18, 2015 with respect to cooling water facilities within a factory.

2) The Defendant Seoul Guarantee Insurance Co., Ltd. (hereinafter referred to as the “Defendant Seoul Guarantee Insurance Co., Ltd.”) concluded a performance guarantee insurance contract (hereinafter referred to as the “instant guarantee insurance contract”) between the Plaintiff, the insured, the purchase price of the insurance, the amount of KRW 5,181,818, and the insurance period from August 17, 2015 to September 18, 2015 (hereinafter referred to as the “instant guarantee insurance contract”).

3) According to the instant guarantee insurance contract, the Defendant Seoul Guarantee Insurance compensates the insured for the loss suffered by the insured who is the obligee by failing to perform his/her duties provided for in the main contract (Article 6 of the Terms and Conditions), and the insurance proceeds to be paid by the Defendant Seoul Guarantee Insurance shall be the amount to be forfeited or forfeited to the insured as provided for in the main contract. If the main contract does not include any forfeiture or reversion clause of the contract deposit, the amount of actual damage out of the amount claimed by the insured to the extent of the contract deposit shall not be included in the amount agreed upon (Article 7).

4) On August 20, 2015, the Plaintiff paid KRW 28,500,000 to Defendant A as down payment. However, as Defendant A delayed construction, the Plaintiff sent a certificate of demand for the progress of construction around November 13, 2015. Nevertheless, the Plaintiff rescinded the said contract by delivering a copy of the instant complaint, which did not proceed.

[Ground of recognition] The facts without dispute, Gap evidence 1 through 4 (including each number), Eul evidence 1, Eul evidence 3, the purport of the whole pleadings

B. Determination

1) Determination on the cause of the claim

According to the above facts, the above contract was rescinded due to Defendant A’s default, and the Plaintiff suffered considerable loss due to the advance payment to be returned. Therefore, it is reasonable to view that Defendant A’s obligation to return advance payment constitutes damages to be compensated for in the instant guarantee insurance contract.

Furthermore, considering the following circumstances that are acknowledged by Defendant A by comprehensively considering the overall purport of the pleadings as to the advance payment amount to be returned by Defendant A’s health class and evidence Nos. 4 through 6 (including each number), Defendant A appears not to have installed a lurgator. In other words, it is not confirmed whether the basic construction work was performed and a lurgator was produced in advance, and the Plaintiff concluded a construction contract again with Defendant C with regard to the said cooling water supply system around May 6, 2016, and the contract amount was 59,400,000 (including value added tax) more than the contract amount of the said contract. In light of the content of the advance payment to be returned by Defendant A is 46,00,000 won or more than the contract amount of the said contract, it is reasonable to deem that the advance payment to be returned to the Plaintiff exceeds at least 5,181,818 won, which is the purchase price of the guaranteed insurance contract of this case.

C. Sub-decision

Therefore, Defendant Seoul Guarantee Insurance is obligated to pay the Plaintiff damages for delay from June 3, 2016, the day following the expiration of seven days from the delivery date of the copy of the complaint in this case (the Plaintiff claimed damages for delay from the day following the delivery date of the copy of the complaint in this case, but according to the statement in Eul Eul 3, the insured is required to submit documents proving the amount of damages at the time of the claim of the insurance money, and Defendant Seoul Guarantee Insurance shall pay the insurance money without delay after receiving the claim of the insurance money (Article 19 of the Terms and Conditions) within seven days after the determination of the insurance amount to be paid (Article 19 of the Terms and Conditions). This appears to have agreed that Defendant Seoul Guarantee Insurance will be liable for delay of power only after the reasonable period for determining the insurance money after receiving the claim of the insurance money. Since it is not proved that the Plaintiff submitted documents proving the amount of damages before the filing of the lawsuit in this case to the Defendant Guarantee Insurance prior to the filing date of the lawsuit in this case and submitted them to the Defendant’s claim for damages for delay.

3. Conclusion

Therefore, with respect to the Plaintiff, Defendant A shall pay 38,50,000 won and the 28,500,000 won for the repayment of the down payment from August 20, 2015 to June 23, 2016, the delivery date of a copy of the complaint in this case; damages for delay calculated at the rate of 6% per annum as stipulated in the Commercial Act; and damages for delay calculated at the rate of 15% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment; with respect to the remaining damages for delay, 10,000,000 won, the damages for delay calculated at the rate of 15% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from June 24, 2016 to the day of full payment (the Plaintiff is liable to pay damages for delay from the delivery date of the copy of the complaint, but the damages due to default shall be liable to discharge from the above damages for delay to the Defendant A and 20815.

The plaintiff's claim against the defendants of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

Judges Jeon Young-young

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.