2017Na2014855 Services Fees

Co., Ltd.

Lawing the Construction and Improvement of Housing Units

Incheon District Court Decision 2016Gahap52933 Decided February 14, 2017

July 20, 2017

September 14, 2017

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to pay is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

The defendant shall pay to the plaintiff 280,918,030 won with 5% interest per annum from April 30, 2016 to September 14, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. 30% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 364,882,90 won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows in Part 8, Section 17, among the judgment of the court of first instance, to add the plaintiff's cause of action, and to add "2. Additional Judgment" as to the argument that the defendant emphasizes or adds to this court, and "No. 14, No. 2, No. 14 of the judgment of the court of first instance" is the same as that of the judgment of the court of first instance, except for the deletion of the theory of lawsuit, and therefore, it is accepted in accordance with

○ Additional Grounds for Claim

“Although the instant service contract was terminated by the Defendant’s notification of termination on July 7, 2015 due to the Plaintiff’s cause attributable to the Plaintiff, the said contract shall be liable to pay to the Defendant the down payment, 30% of which is the service cost due and due regardless of whom the contract was terminated due to a cause attributable to a person, as long as the contract constitutes a contract of remuneration for the said period.”

2. Additional determination

A. As to the non-existence and non-performance of the duty to pay service costs

In light of the opposite interpretation of Article 686(3)1 of the Civil Act, the defendant asserts that, in a case where the mandate terminates in the middle due to a cause attributable to the mandatary, the mandatary cannot claim all remuneration, so the defendant does not have any obligation to pay the service cost

The latter part of Article 686(2) of the Civil Act provides that in the case of a delegation contract whose remuneration is fixed for a certain period of time, the mandator may claim remuneration after the termination of the delegation contract, and it is irrelevant to who is responsible for the termination of the delegation contract. In order to interpret the above provision and Article 686(3) of the Civil Act harmoniously, Article 686(3) of the Civil Act applies only to a case where remuneration is payable on a regular basis, when the delegation terminates in the middle of a certain period of time, and Article 686(3) of the Civil Act applies only to a case where remuneration is payable on a regular basis, and thus

Meanwhile, pursuant to Article 5 of the instant service contract, the Defendant asserts that the date when the contractor is selected is due until the date of the first intermediate payment among the service costs of this case, and that the instant service contract was terminated before the selection of the contractor, and that the contract of this case was terminated, and that the contract of this case, which the Plaintiff seeks as the lawsuit of this case, and the period during which the first intermediate payment was due is not due. However, if the service contract of this case is terminated or terminated when the Plaintiff and the Defendant entered into a monetary loan contract of this case, the Defendant agreed to receive the service cost already executed from the Plaintiff is as seen earlier (Articles 2-2 and 4(2) of the evidence No. 2-2 of this case), and even if the contract of this case cannot be applied to the service cost because it is related to a monetary loan of this case, the Defendant’s obligation to settle the payment due to the termination of the contract may take place from the date of termination of the contract, barring any special circumstances. Thus, the Defendant’s assertion

B. As to the assertion on reduction of service costs

The defendant is obligated to pay the service cost actually performed to the plaintiff until the termination of the contract of this case, and the amount equivalent to 30% of the service cost corresponding to the first midway payment agreed to be paid by the time the safety inspection was passed, as seen earlier. However, the defendant asserts that the service cost should be reduced because the service cost is excessive compared to the service cost actually performed by the plaintiff.

In principle, in cases where an agreement on the amount of remuneration under a delegation agreement is agreed upon, a mandatary may claim in principle the amount of remuneration under the delegation agreement in full. However, in light of the background of delegation, the process and difficulty of performing delegated duties, the degree of effort made by the mandator, specific benefits that the delegating person gains in the course of performing his/her duties, and other circumstances revealed in pleadings, a mandatory may claim only the amount of remuneration within the reasonable scope exceptionally deemed reasonable, in exceptional cases where there are extenuating circumstances to deem that the amount of remuneration under the delegation is unduly excessive and contrary to the principle of good faith and equity (see Supreme Court Decision 2015Da35560, Feb. 18, 201

As to the instant case, the Defendant asserted that the Defendant’s profit derived from the instant service contract is only KRW 1,90,000,00, which is the amount equivalent to the statutory interest during the period prior to the termination of the instant contract, and KRW 21,000,000, which is the amount equivalent to the labor cost of the Plaintiff’s employees who worked at the Defendant’s office for the period of two to three times a month. The Plaintiff’s assertion that the Plaintiff performed the instant service, only if he asserted that the Plaintiff performed the service, and there was no material to estimate the actual cost or expenses. ② Even if the Defendant’s assertion on the performance of the instant service cannot be accepted at par value, it is short of the period from the date of the instant contract to the date of the safety diagnosis, and safety diagnosis itself is conducted by the administrative agency, and it is difficult to view that the Plaintiff’s actual cost or effort for the performance of the service was unreasonable after the contract’s completion of the service contract, and it is difficult to view that the Plaintiff’s negligence was 200,00,00,000 won.

C. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff 195,918,030 won and damages for delay calculated by 15% per annum under the Civil Act from April 30, 2016, which is the day following the delivery date of a copy of the complaint of this case sought by the Plaintiff, to the extent of the existence and scope of the Defendant’s performance obligation, from April 14, 2017, to September 14, 2017, and from the next day to the day of full payment, the damages for delay calculated by 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which is the day when the copy of the complaint of this case is served by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above recognized scope, and the remaining claims shall be dismissed as it is without merit. Since the part against the defendant ordering payment in excess of the above recognized amount is unfair, the defendant's appeal is partially accepted and the plaintiff's claim corresponding to the revoked part is dismissed, and the remaining appeal by the defendant is dismissed as it is so decided as per Disposition.

Judges of the presiding judge shall be appointed from among judges;

Judges Park Jin-jin

Judges Kim Jong-ok

1) If the mandate terminates in the course of performance of the entrusted affairs by the mandatary due to any cause not attributable to the mandatary, the mandatary is entitled to remuneration in proportion to the affairs already managed by him.

2) (State) Civil Code / [2] No. 601 of Part 4, Part 4, Part 601, Part A, Part A, the Korean Judicial and Administrative Association, and see Supreme Court Decision 2016.