2017Da231836 Compensation for damages

Seocho-gu Seoul Metropolitan Government

person

1. A stock company;

2. B

Seoul High Court Decision 2016Na2075730 Decided April 21, 2017

April 12, 2018

The part of the lower judgment against the Plaintiff pertaining to the claim for damages equivalent to the parking lot commission fee is reversed, and that part of the case is remanded to Seoul High Court

All appeals by the Defendants are dismissed.

The grounds of appeal are examined.

1. Review of the reasoning and records of the lower judgment and the first instance judgment cited by the lower court reveals the following facts.

A. The Plaintiff, as indicated in the holding of the lower judgment, has the authority to manage the instant parking lot as indicated in the judgment below, and the Plaintiff and Defendant A Co., Ltd. (the representative director is the spouse of Defendant B; hereinafter referred to as “Defendant Co., Ltd.”) to whom Defendant B substantially operates, entrusted the management and operation of the instant parking lot to the Defendant Co., Ltd. (two years) from August 5, 2014 to August 4, 2016 (two years), and the Defendant Co., Ltd entered into the entrustment contract (hereinafter referred to as the “instant entrustment contract”) with the Defendant Co., Ltd. to pay for the first year (from August 5, 2014 to August 4, 2015), including value-added tax, and for the second year (from August 5, 2015 to August 5, 2016).

B. The Defendant Company paid the first year consignment fee and started the instant parking lot business. However, on March 19, 2015, the Defendant Company expressed its intent to waive the management and operation of the second year to the Plaintiff, and thereafter, the instant consignment contract was invalidated at the time of August 5, 2015.

D. Nevertheless, the Defendants unilaterally asserted the withdrawal of the intent to renounce the said parking lot and transferred KRW 1550 million to the Plaintiff viaout July 1, 2015 and July 2, 2015, while occupying and using the instant parking lot without permission even after August 5, 2015, and transferred it to the Plaintiff on August 6, 2016.

E. Meanwhile, on July 27, 2015, the Plaintiff entered into a contract on the instant parking lot by setting the period of entrustment as KRW 100 million from August 6, 2015 to August 5, 2016 (including value-added tax) and the consignment management contract on the instant parking lot. However, the Defendants asserted that the instant consignment contract remains valid, and refused to deliver the instant parking lot and continued to operate the instant parking lot business. Accordingly, the agreement between the Plaintiff and the transmitting parking management was terminated as the Plaintiff’s nonperformance of obligation, and accordingly, the Plaintiff paid KRW 27,114,90 as damages due to nonperformance of the obligation to manage the transmitting parking on April 21, 2016.

2. First, we examine the Plaintiff’s grounds of appeal.

In the event that the Plaintiff, a local government, entrusted the management of the instant parking lot to the Defendant Company, etc. for commercial use and profit therefrom, and the Defendant Company, etc. supplied goods or services to a third party on its name and account, barring any special circumstance, the Plaintiff may be deemed to have supplied real estate rental services to the Defendant Company, etc. for value-added tax and tax purposes (see Supreme Court Decision 2015Du48754, Jul. 11, 2017). (2) Although the instant consignment contract, which is the cause of the supply of real estate rental services, was terminated by agreement between the Plaintiff and the Defendant Company, the Defendant Company continued to occupy and use the instant parking lot without delivering it, and paid the Plaintiff the second consignment fee for the second year corresponding to the price, and (3) even after the Plaintiff had expressed his intention to refund the consignment fee to the Defendant Company on July 7, 2015, the Plaintiff was also liable to pay the amount corresponding to the instant consignment contract’s termination after the Plaintiff’s possession of the instant parking lot.

Therefore, the lower court calculated the amount of damages incurred to the Plaintiff due to the Defendants’ unauthorized occupation of the instant parking lot based on the consignment fee agreed to manage and manage the parking lot and the consignment fee of KRW 130 million. In so doing, it erred by misapprehending the legal doctrine regarding the calculation of damages, excluding the value-added tax.

3. Next, we examine the Defendants’ grounds of appeal.

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the records, the court below is just in finding that the actual operator of the defendant company caused the state of occupation without permission of the defendant company and maintained the illegal possession as joint tortfeasor, and on the premise that the defendant B is liable for damages against the plaintiff as joint tortfeasor. The amount paid by the plaintiff in the parking management for the plaintiff is also the special damage of the plaintiff, and thus included in the scope of the plaintiff's damage since the defendants knew or could have known the occurrence of the damage. On the other hand, the court below rejected the defendants' assertion of comparative negligence, and rejected the defendants' assertion of comparative negligence. The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to whether to add the interest on the claim for return of unjust enrichment equivalent to the charges for the second year entrusted to the plaintiff

4. Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part of the lower judgment against the Plaintiff equivalent to the commission fee of the parking lot is reversed, and that part of the case is remanded to the lower court. The Defendants’ appeal is dismissed in entirety. It is so decided as per Disposition by the assent of

Justices Kim In-bok

Justices Park Sang-ok

Chief Justice Lee Dong-won

Justices Park Il-san