2018 Ghana 5264553 Damage, Claim

A Stock Company

B

April 24, 2020

May 29, 2020

1. The defendant shall pay to the plaintiff 2,60,000 won with 6% interest per annum from January 4, 2019 to May 29, 2020, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 3,00,000 won with 15% interest per annum from the next day of service of a copy of the complaint of this case until May 31, 2019, and 12% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On October 11, 2017, the Plaintiff engaged in the Internet broadcasting business, etc. entered into a “contract to contribute exclusively to the Internet broadcast operated or designated by the Plaintiff” (hereinafter “instant contract”). The main contents of the instant contract are as follows.

Article 2 (Definition of Terms) (1) "Internet Broadcasting" means a telecommunication (broadcasting) service through which unspecified persons can transmit, view, and communicate broadcasting through computers (PC) or mobile, etc.: Contract deposit: 10 million won (payment after full-time deduction) and 4 (Contract Payment Terms): the contract term: the number of monthly broadcasts from October 11, 2017 to October 10, 2019: At least 16 times (one day in principle) and the number of broadcasting hours per day (one-time broadcasting) are recognized to have been completed once more than 2 hours: Provided, That if broadcasting is interrupted by the Internet (Internet, e.g., disability and date of down payment) and the broadcast system, the cumulative number of broadcasting hours per two months after the end of two months (one-time period of total-time broadcasting) regardless of the frequency of broadcasting contracts: 10,000 won or less, the cumulative number of broadcasting hours per two months after the end of two-month broadcasting (one-time broadcasting contract).

1) The Plaintiff may unilaterally terminate the instant contract after notifying the Defendant in writing or Handphone text messages without prior coordination or consent, upon failure to comply with Article 4(2) and 3(c) twice. Article 14(1) of the Act provides that if the Defendant is to terminate the contract in violation of any of the provisions of Article 13(1), three times the down payment shall be paid to the Plaintiff within 30 days from the date the Defendant received the notice of termination.

B. Pursuant to Article 3 of the instant contract, the Plaintiff paid KRW 9.67 million to the Defendant on the same day (=10 million - (10 million x 3.3%).

C. The Defendant contributed to the Internet broadcast of the Plaintiff’s operation in a separate name called “C” according to the instant contract, and the Defendant’s broadcast frequency under the instant contract following the conclusion of the instant contract is as follows.

A person shall be appointed.

A person shall be appointed.

D. On December 10, 2018, the Plaintiff expressed the Defendant’s intent to terminate the instant contract on the grounds that the Defendant did not observe the monthly broadcasting days more than twice.

[Evidence] Facts without dispute, Gap evidence 1 to 4, Gap evidence 7-1 to 8-4, the purport of the whole pleadings

2. A claim for personal news under Article 4(1) of the instant contract

A. Determination on the cause of the claim

If there is an agreement between the parties to pay a penalty for nonperformance, whether the penalty for breach of contract is scheduled to be paid or not shall be determined individually in a specific case by comprehensively taking into account the details of the disposal document, such as a written contract, and the details of the conclusion of the contract. Penalty for breach of contract is presumed as liquidated damages under Article 398(4) of the Civil Act; however, special circumstances where the agreement between the parties is difficult to deem that the agreement between the parties is aimed at compensating for or compensating for the damage caused by the nonperformance of contract, especially where there exists a separate provision concerning liquidated damages or where the clause concerning liquidated damages is premised on the premise of actual damage, and where the clause concerning liquidated damages is interpreted as liquidated damages, it shall be deemed as penalty for breach of contract (see Supreme Court Decision 2013Da82944, 82951, Jul. 14, 2016).

Article 4(1) of the instant contract is deemed to be a penalty agreement that indirectly forces the Defendant to perform his/her broadcast obligation in light of its content and the relationship with Article 14(1) of the instant contract. Therefore, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff the penalty penalty of 2.6 million won for the penalty against the violation of the broadcast frequency of 14 months (from October 11, 2017 to December 10, 2018) (14 months from the frequency of compulsory broadcast) during which the Defendant failed to comply in accordance with the instant agreement for the period of 14 months (from October 11, 2017 to December 10, 2018) and the damages for delay.

B. Judgment as to the defendant's defense of offset

The defendant asserts that the plaintiff forced the defendant to broadcast exposure from January 2018 to the defendant, and the defendant suffered a considerable mental suffering. Thus, the plaintiff is obligated to pay consolation money of KRW 15 million to the defendant due to the above illegal act, and the plaintiff asserts that it offsets the plaintiff's claim against the penalty of this case by using it as the automatic claim.

The statement of No. 4-1, No. 2, and No. 3 alone is insufficient to recognize that the plaintiff committed coercion as alleged by the defendant, and there is no other evidence to acknowledge it. Thus, the defendant's defense of set-off based on such premise is without merit.

3. Claim for damages under Article 14(1) of the instant contract

A. Determination on the cause of the claim

According to the above facts, the contract of this case was lawfully terminated on or around December 10, 2018 pursuant to Article 13(1) of the contract of this case on the ground that the defendant's failure to observe the number of mandatory broadcasting days, and barring any special circumstance, the defendant is obligated to pay to the plaintiff 30 million won (=the down payment of KRW 10 million x 3) and damages for delay.

B. Judgment on the defendant's assertion of terms and conditions

The defendant asserts that Articles 13 and 14 of the contract of this case are null and void in accordance with Articles 6 and 8 of the Regulation of Standardized Contracts Act (hereinafter referred to as the "Standard Contracts Act").

However, Articles 13 (1) and 14 (1) of the Contract of this case are "Terms and Conditions" under Article 2 (1) of the Terms and Conditions Act, which are prepared by the plaintiff as a party to the contract in advance in order to enter into the contract with a large number of counterpart contributors, and 2) First, we examine Article 13 (1) of the Contract of this case.

Article 6(1) and (2)1 of the Terms and Conditions Act provides that in order to be deemed null and void on the ground that the terms and conditions are “a clause which has lost fairness in violation of the principle of trust and good faith,” which is an unfairly unfavorable clause against the customer pursuant to Article 6(1) and (2)1 of the Terms and Conditions Act, it is insufficient to say that the terms and conditions are somewhat unfavorable to the customer. In addition, it should be recognized that the standardized terms and conditions developer abused his trade position and prepares and uses a standardized contract clause contrary to equity against the legitimate interests and reasonable expectations of the contracting party, thereby impairing sound trade order, etc. (see Supreme Court Decision 2013Da214871, Jul. 24, 2014). However, Article 13(1) of the Contract of this case provides that the Plaintiff may terminate the contract of this case where the Defendant failed to achieve the number of mandatory broadcasting days for more than two months, it is merely a termination clause on the ground of nonperformance, and the Defendant also can terminate the contract of this case pursuant to the general principles of the Civil Act.

Next, with respect to Article 14 (1) of the contract of this case, the above provision provides that the defendant shall bear the liability for damages in the event the monthly broadcasting days of the defendant falls short of the agreed number of days regardless of whether there is a cause attributable to the defendant. ② With respect to non-compliance with the monthly broadcasting days, a reasonable amount of penalty is also imposed as seen earlier, apart from the damages under the above provision. ③ The contract deposit 10 million won paid by the plaintiff to the defendant is not only the nature as an advance for the smooth settlement of broadcasting activities of the defendant, but also the nature of the consideration for the defendant to faithfully complete the broadcasting obligations that the defendant agreed during the contract of this case. In full view of the above provision, regardless of the degree of the defendant's default or the time of termination, the above provision provides three times the contract deposit of this case as compensation amount, regardless of whether it is a cause attributable to the defendant, and it is reasonable to deem that the above provision is invalid under Article 8 of the Terms and Conditions Act. Therefore, this part of the defendant'

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 2.6 million won and damages for delay calculated at the rate of 6% per annum under the Commercial Act from January 4, 2019, which is the day following the delivery day of the copy of the complaint of this case, to May 29, 2020, and 12% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, which is the date of the decision of this case, and from May 29, 2020, from the day after the decision of this case, to the day after the next day of complete payment. Thus, the plaintiff's claim of this case of this case is justified within the above recognition scope, and the remaining claims are dismissed as they are without merit. It is so decided

Judges Park Jong-sung

1) The Defendant asserts that the number of its broadcast broadcasts is as follows: (a) twice of February 12, 2018; (b) March 15, 2018; (c) April 14, 2018; and (d) May 12, 2018; and (c) September 19, 2018; (c) however, according to Article 4(c) of the instant contract, the broadcast is deemed to have been completed once more than two consecutive hours; and (d) the Defendant’s assertion on a different premise is rejected.

2) In a case where one party to a contract prepares a standardized contract and enters into a contract by presenting it to a certain party, if the other party has an opportunity to adjust its own interests through individual negotiations (or negotiations) with regard to a specific clause, such specific clause shall be deemed an individual agreement not subject to the Act on the Regulation of Terms and Conditions. In order to establish that there exists an individual negotiation, even though the result of the negotiation does not necessarily appear in the form of changing the contents of a specific clause, at least it is possible for the other party to modify the specific clause without being bound by the prior review and consideration of the specific clause at least on an equal basis with the person who presented the standardized contract and exercise influence, and the fact that the standardized contract term became an individual agreement between the parties is deemed an individual agreement. Accordingly, it is difficult to deem that the Defendant had an influence on the amendment of the standardized contract, and thus, it is difficult to see that there was an excessive possibility that the Defendant had an effect on the amendment of the standardized contract terms and conditions, based on the overall purport of Article 14(1)1 of this case.