2016Gaz. 576575 Action claiming sales agency fees

A Stock Company

Madnbn Co., Ltd.

December 1, 2017

January 26, 2018

1. The defendant shall pay to the plaintiff 229,690,000 won with 6% interest per annum from April 15, 2016 to January 31, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Conclusion of a sub-sale agency contract between the plaintiff and the defendant

1) The regional housing association (hereinafter referred to as the “regional housing association of this case”) of Yongsan-si (hereinafter referred to as the “instant apartment”) that is promoting the new construction of the apartment in the land population B in Gyeonggi-si (hereinafter referred to as the “instant apartment”) concluded a sales agency contract with the content of entrusting the sales agency of the instant apartment to the non-party L&Wnsan Co., Ltd. (hereinafter referred to as the “N&P”) (hereinafter referred to as the “instant unit sales agency contract”).

2) On July 31, 2015, No. nb entered into a contract for the parcelling-out agency (hereinafter referred to as “the original parcelling-out agency contract of this case”) with the content that the apartment sales agency business of this case under the original parcelling-out agency contract of this case is re-entrusted to the defendant. On the same day, the defendant entered into a contract for the re-sale agency (hereinafter referred to as “the re-sale agency contract of this case”) with the content that the apartment sales agency of this case is re-entrusted to the plaintiff.

3) The main contents of the instant sub-sale agency contract are as follows.

Article 5 (Terms and Conditions of Sale by Proxy and Fees for Sale by Proxy) A (the defendant) shall be paid to B (the plaintiff) for the following terms and conditions: ① Performance of sale by proxy shall be included only for the part entered into a contract for sale by lots, and subscription or portion of provisional contract shall not be included in the performance of sale by lots; ③ Performance of sale by proxy shall be applied only when the down payment (the first one) deposit is paid in full; and ④ Performance fees shall be 4.3 million won per household (in addition to value added tax).No less than 50% of the total intended members of the recruitment by proxy shall be paid at the time of recruitment by at least 50% of the total intended members of the recruitment by proxy (50% of the total intended members of the recruitment by proxy, and when the contract period of sale by proxy of the plaintiff has expired, the plaintiff and the defendant shall be paid at least 50% of the total performance of the third event designated by the defendant on behalf of the plaintiff, or the defendant shall be paid at least 6 (liability and obligation).

B. Termination, etc. of the re-sale agency contract of this case

1) On September 23, 2015, the Plaintiff and the Defendant agreed to terminate the instant sub-sale agency contract, and drafted an agreement following the termination of the sales agency contract with the following contents (hereinafter “instant agreement”).

Article 1 [Time of Termination of the Service Contract] The Plaintiff and the Defendant terminate the sales service contract on September 23, 2015 on the basis of the hour the sales contract is terminated on September 23, 2015.Article 2 (Method of Settlement of Sales Commissions) (limited to the households whose regular contract is terminated on September 23, 2015, based on the time the sales contract is terminated on September 23, 2015, a sales agency fee shall be paid pursuant to Article 5 of the re-sale agency contract in the instant case, and only the households which are currently subscribed on September 23, 2015 are converted into a regular contract by October 13, 2015, the sales agency fee shall be settled in accordance with Article 5 of the re-sale agency contract in the instant case. 3. The number of households whose sales contract was terminated on September 23, 2015 and the criteria for the number of households to which the sales contract was completed as of September 23, 2015 shall be based on the subscription and the present status sales contract (number: 8 households).

2) The number of households that serve as the basis for calculating the sales agency fee to be paid by the Defendant to the Plaintiff under the instant agreement is 103 households.

C. Authorization for the establishment of the instant regional housing association

Meanwhile, the instant regional housing association: (a) recruited its members at least 50% of the total intended members of the association on April 1, 2016; (b) held an inaugural general meeting on April 30, 2016; (c) applied for authorization to establish an association on June 16, 2016; and (d) obtained authorization on August 16, 2016.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 through 5, Eul evidence No. 3, and whether all pleadings are taken

2. Determination on the cause of the claim

According to the facts as seen earlier, the Defendant recognized the Plaintiff’s obligation to pay 487,190,000 won (including 4,300,000 won per household x 103 households x 103 households x 103 households d,30,000, additional tax) as follows: (a) the remainder of 229,690,000 won (= 487,190,000 - 257,500,000 - 257,50,000) from April 15, 2016 after the date on which the Plaintiff’s claim for the commission for the sale of lots was filed to the Plaintiff under the instant sub-sale agency contract; (b) the amount of 6% per annum under the Commercial Act from the next day to January 31, 2017, which is the delivery date of the complaint of this case; and (c) the amount of 15% per annum from the next day to the date of payment (the next day).

3. Judgment on the defendant's defense of offsetting

7. Defendant’s assertion

The plaintiff did not perform the obligation to pay allowances, etc. to the business employees pursuant to Article 6 (2) of the re-sale Agency Contract of this case and the agreement of this case, which caused interference with the plaintiff's agricultural nature and business of the business employees who did not receive business allowances, etc. from the plaintiff, and eventually, the defendant was subject to termination of the contract of this case from A&P. Therefore, due to the plaintiff's failure to perform the obligation, the defendant suffered losses from the plaintiff's automatic sales agency contract of this case by offsetting 1,239,70,000 (391,70,000,0000,000,000 from the commission for the number of members additionally recruited after the termination of the contract of this case, + the defendant's liability to pay damages to the plaintiff's damages to the plaintiff's sales agency of this case by offsetting 1,239,70,000,000 won (the defendant lost its obligation to pay damages to the plaintiff's damages to the plaintiff's claim of this case).

B. Determination

1) In full view of the results of the fact-finding on E&P, Gap evidence 10, Eul evidence 10, Eul evidence 4, and the purport of the whole pleadings, Lee T&P notifies the defendant that he would terminate the original purchase contract of this case on November 10, 2015 on the ground that the sales rate is low and the defendant's sales commission, labor expenses (business allowances) are not paid, etc., and the business employees who actually performed the sales agency work at the time are deaf in the apartment model house of this case, interfere with the members recruitment business, and interfere with E&P's business allowances against E&P.

1) All matters arising out of the violation of this contract entered into with the defendant during the course of performing the sales agency business shall be dealt with under the plaintiff's responsibility.

shall be liable for damages to the defendant, and if such damages are incurred to the defendant, the plaintiff shall be liable and liable.

The demand for direct payment was made, and such circumstance was the fact that the termination of the original purchase contract of this case, which led to the conclusion of the contract, and the fact that the plaintiff failed to pay business allowances, etc. to the business employees who performed the sale business under the jurisdiction of the plaintiff at the time of the contract for the resale purchase of this case.

2) However, the following circumstances, which can be acknowledged by comprehensively taking account of the aforementioned evidence, Gap evidence, Gap evidence Nos. 9 and 11, and the overall purport of the pleadings, i.e., the defendant succeeded to some of the plaintiff's business employees after the completion of the re-sale agency contract of this case, and continued to sell the goods to the defendant's business employees (or employees belonging to Taeyangyang-M Co., Ltd. which entered into a new sub-sale agency contract with the defendant) (the defendant's representative director D et al. was living in the apartment model house of this case after the termination of the sub-sale agency contract of this case, and did not pay the plaintiff's operating allowance to the former business employees after the completion of the sales agency contract of this case. However, according to Gap evidence No. 11, it seems that the above D's business employees' agricultural nature began to have occurred after the termination of the sub-sale agency contract of this case, and it is difficult to readily conclude that the plaintiff's business employees's business employees' new sales allowance of this case were not paid to the plaintiff No.2.

3) In light of the fact that it appears that the difference between the Defendant and A&P is likely to have combined impact on the combined sales rate, etc. [Article 12 (1) 4 of the Parcelling-Out Contract of this case, according to the fact that the sales rate is considerably low (if it is deemed that the continuous progress of the business is not possible, it may terminate the Parcelling-out contract of this case) within the period of the Parcelling-out agency service, etc.], it is difficult to readily conclude that the termination of the Parcelling-out agency contract of this case between the Defendant and A&P is caused by the Plaintiff’s violation of the Parcelling-out agency contract of this case or the causes attributable to the Plaintiff, and there is no other evidence to acknowledge otherwise.

3) Therefore, the defendant's damage claim against the plaintiff cannot be acknowledged, and further, the defendant's counterclaim against the right to automatically collect the claim is without merit.

4. Conclusion

The plaintiff's claim is justified and accepted.

Judges Yoon Sung-sung (Presiding Judge)

Judges Kim Young-soo

Judge the last place of Justice

1) The Plaintiff shall deal with all matters arising out of the violation of the terms and conditions of this contract entered into with the Defendant during the course of carrying out the sales agency business under the Plaintiff’s responsibility, and the Plaintiff shall be liable and liable for damages to the Defendant

2) According to the evidence Nos. 8 of B, Taeyang also has the obligation to pay business allowances, etc. to business employees.

3) Meanwhile, the defendant alleged that the defendant's low sales rate was due to the plaintiff's lack of personnel expenses, etc., but there is no evidence to acknowledge it.