The case holding that the contract itself cannot be terminated on the ground of the violation of the above contract, on the ground that, in the event that a food supply contract is concluded with the school's side with a written estimate to supply the name of the Russia and that, in light of all the circumstances, the obligation to supply the name of the Russia is unnecessary in accomplishing the purpose of the above contract, and if the purpose of the contract is not fulfilled, it is deemed that the principal did not have entered into the contract because it is not deemed that the purpose of the contract is not achieved

The case holding that the contract itself cannot be terminated on the ground of the violation of the above contract, on the ground that, in the event that a food supply contract is concluded with the school's side by submitting a quotation to supply the Russia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia Pisia, the contract itself cannot be terminated on the ground of the violation of the above contract on the ground

Articles 105 and 543 of the Civil Act

Plaintiff Co., Ltd. (Law Firm Seohae, Attorneys Yellow-han et al., Counsel for the plaintiff-appellant)

Incheon Metropolitan City (Attorney Fixed-at-Law)

December 22, 2005

1. It is confirmed that the right to food supply under the food supply contract of February 25, 2005 between the plaintiff (name omitted of school) and the principal of elementary school is the plaintiff.

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

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged in full view of the purport of each of the statements in Gap evidence 1, 5, Gap evidence 2, and Eul evidence 6-1, 2, Eul evidence 1, 2, 2, 7, 14 through 17, Eul evidence 3-1, and Eul evidence 2 (the evidence No. 3-1 is the evidence No. 1; the same shall apply to the evidence No. 3-1) and the testimony of non-party 1, 2, and 3 (excluding the statement No. 7 and the testimony of non-party 2 among the testimony of non-party 2).

A. The Defendant established and operated (school name omitted) elementary school (hereinafter “instant school”), and the Plaintiff (hereinafter “instant school”) changed the trade name from “stock company (i.e., September 15, 2005 to “stock company (i.e., omission)” into “stock company (i.e., omission)” is running food manufacturing, wholesale and retail business.

B. On February 25, 2005, the Plaintiff entered into a food supply contract between the principal of the instant school (the person has the authority to implement school meal services under the School Meals Act) and the principal of the instant school from March 1 to February 28, 2006 to supply fishery products and dry water to the instant school (hereinafter “instant contract”) and agreed on the grounds for termination as follows (hereinafter “instant contract”).

Article 8 (Harmful Drugs)

(1) Where "B" violates this Agreement without prior notification.

(4) If the supply unit price is higher than the retail unit price or the quality of the goods is lower than the retail unit price.

(5) Where "B" has caused a frustrating or causing water to meal services by intention or gross negligence in the course of supplying goods.

C. Before entering into the instant contract, the Plaintiff: (a) prepared a written estimate with respect to the item column among the fishery products to be supplied to the instant school; (b) KRW 18,000 per kilogramme; and (c) submitted it to the principal of the instant school; (c) upon entering into the instant contract with the principal of the instant school, the Plaintiff agreed to attach a written statement setting the unit price for the supplied food to the contract; but (d) failed to separately prepare the subsequent specifications.

D. On July 15, 2005, pursuant to the instant contract, the instant school decided to purchase 17 kilograms from the Plaintiff at KRW 18,000 per kilogramme, and requested the Plaintiff to supply them to the instant school on July 19, 200 without specifying its origin.

E. Around June 2005, the Plaintiff was notified that there was no inventory to be supplied from the Young Pungyang Fishery and Jinsung Fishery, which had been supplied with Pyeongtaek Pussia, and received 10 boxes in U.S. dollars from the 3th of the same month from the distribution of the fishery. On July 19, 2005, the Plaintiff supplied the instant school with 17 kilograms processed and supplied them to the instant school, and indicated that it was the Russia column on its trading specifications and packaging containers.

F. As above, in the instant school, the school completed the school meal service to the students by cooking allebls supplied by the Plaintiff, and thereby did not cause any disease or health harm to the students.

G. On August 12, 2005, the principal of the instant case sent to the Plaintiff a certificate of content that contains the intent to terminate the instant contract, and had it reached around that time.

H. The principal of this case entered into a contract with the non-party 4 corporation (hereinafter "non-party 4") on August 22, 2005 to be supplied with fishery products and dry water from February 28, 2006. The principal of this case was supplied with 18,500 won per kilograms without distinction between Alscarsan and Russia and used for the meal of the school of this case.

2. The assertion and judgment

A. The parties' assertion

The Plaintiff sought confirmation that the right to supply food under the contract of this case was unfair as the termination of the contract of this case. On the other hand, the Defendant asserted that the Plaintiff’s act of supplying the instant contract by indicating the origin as if the U.S. P. P. P. S. P. P. S. P. S. P. S. P. M. was the cause for termination under Article 8(1),

B. Whether the instant contract constitutes grounds for termination under Article 8(1) of the Act

The defendant asserts that the plaintiff's violation of the contract of this case without prior notice, because the plaintiff supplied the name of the United States, not Russia, but Russia, constitutes grounds for termination under Article 8 (1) of the contract of this case.

The principal of the instant case did not specify the origin of the name column or request the Plaintiff to supply the name column to the instant contract, as acknowledged above. However, since the Plaintiff stated it on the transaction statement and container prepared by supplying the name column and the name column after the quotation and after the quotation submitted by the Plaintiff to the principal of the instant contract to conclude the instant contract, the Plaintiff is obligated to supply the name column to the instant school, and the Plaintiff violated the instant contract by supplying the name column to the U.S. school. Nevertheless, the Plaintiff violated the instant contract by supplying the name column to the instant school.

However, in order to terminate the contract of this case on the ground of the violation of this contract, the above obligation is unnecessary in accomplishing the purpose of the contract of this case, and if the purpose of the contract of this case is not fulfilled, the principal of this case is deemed to have not entered into the contract of this case (see Supreme Court Order 97Ma575, Apr. 7, 1997), and school meal services have been conducted without fail due to the following circumstances, i.e., the name supplied by the plaintiff, and the principal of this case has entered into the contract of this case and did not request the plaintiff to supply the name name name as Russia to the extent of supply (the testimony of Non-Party 7 and Non-Party 2's testimony of Non-Party 1 is not trust in light of Non-Party 1's testimony). In light of the above circumstances, it is difficult to view that the principal of this case has to enter into the contract of this case with the plaintiff and the non-party 4's principal of this case to be supplied with the name of the plaintiff after termination of the contract of this case.

Therefore, the contract of this case cannot be terminated on the ground that it constitutes grounds for termination under Article 8 (1) of the contract of this case.

C. Whether the instant contract constitutes grounds for termination under Article 8(4) of the Act

The defendant asserts that since the plaintiff supplied the name of the United States of America with a lower quality than the unit price of retail than the unit price of Russia, it constitutes a ground for termination under Article 8 (4) of the contract of this case.

According to the statements in Gap evidence 10, Eul evidence 13, Eul evidence 15, Eul evidence 18-1 to 6, the plaintiff supplied 22.5 kilograms from Nain fishery distribution to 240,00 won per box (10,666 won per kilogram, and less than 10,66 won for convenience of calculation; hereinafter the same shall apply), and the 22.5 kilograms from sibbbs to 230,000 won per box from 185,00 to 230,00 won under the contract of this case (8,222 won per kilogram), the plaintiff did not have a different unit price from 180,000 won under the contract of this case from 180,000 won to 10,000 won under the contract of this case from 18,000 won to 230,000 won under the contract of this case from 18,000 won to 10,000 won under each contract of this case.

D. Whether the instant contract constitutes grounds for termination under Article 8(5) of the Act

The defendant asserts that the plaintiff's supply of a name with different country of origin constitutes grounds for termination under Article 8 (5) of the contract of this case, since the plaintiff caused water such as ordering the defendant to receive a claim from the steering committee of the school of this case and his parents.

However, in light of the following facts: (a) it is insufficient to recognize that the Plaintiff indicated the evidence No. 13 to No. 4, A4-1, 2, and 3 of the evidence No. 1, and the testimony of Nonparty 1 by Nonparty 1, either intentionally or by gross negligence, and there is no evidence to acknowledge otherwise; (b) even if the Plaintiff intentionally or by gross negligence displayed the origin in a false manner; (c) the Plaintiff conducted the school meal service after cooking the name column supplied by the Plaintiff, but did not cause any illness or health harm to the students; and (d) the principal of the instant school concluded a contract between Nonparty 4 and the Plaintiff to be supplied with the same price regardless of the country of origin; and (e) there is no evidence to acknowledge that there was a lack of evidence to acknowledge the Plaintiff’s testimony to the effect that the Plaintiff terminated the instant contract as a result of deliberation by the governing committee of the instant school; and (e) even if the Plaintiff intentionally or by gross negligence displayed the origin in a false manner, there is no evidence to acknowledge the Plaintiff’s testimony and evidence No. 17.

Therefore, even on the ground that the contract of this case constitutes the grounds for termination under Article 8 (5) of the contract of this case, the contract of this case cannot be terminated.

3. Conclusion

Thus, since there is no ground to terminate the contract of this case, the declaration of intention of termination on August 12, 2005 by the principal of this case is null and void. The contract of this case exists effectively and the right to supply food based thereon exists, and as long as the defendant asserts that the contract of this case was terminated, the plaintiff has the interest to seek confirmation. Thus, the plaintiff's claim of this case is justified, and it is so decided as per Disposition with the assent of all.

Judges Yang Sung-ju (Presiding Judge)