[2] In a case where the members of the joint supply and demand organization composed of four construction companies, including Gap corporation, and Eul corporation, enter into a contract for performance guarantee with Byung Mutual-Aid Association, and submit a performance guarantee contract with Eul corporation, and Gap corporation, during the contract execution, notified Eul corporation of the termination of the contract based on Article 119(1) of the Debtor Rehabilitation and Bankruptcy Act, and the remaining members of the joint supply and demand organization withdraw from Eul joint supply and demand organization with the approval of Eul corporation, and the remaining members of the joint supply and demand organization were succeeded to the shares of Eul corporation, and continued the construction after entering into a contract reflecting the change in the construction and investment ratio, but the construction was not completed, the case holding that the judgment below erred in the misapprehension of legal principles, etc. by misapprehending the legal principles, on the ground that Gap corporation's guarantee accident of the guarantee contract under the joint supply and demand agreement entered into with Byung corporation upon the termination of the contract, and since the remaining members failed to perform their obligations under the contract, Eul corporation may claim payment against Byung

[2] In a case where the members of a joint supply and demand organization composed of four construction companies, including Gap corporation, and Eul corporation, concluded a performance guarantee contract with Byung Mutual-Aid Association and submitted performance guarantee contract, and Gap corporation during the contract, notified Eul corporation of the termination of the contract based on Article 119(1) of the Debtor Rehabilitation and Bankruptcy Act, and the remaining members of the joint supply and demand organization withdraw from the joint supply and demand organization Gap corporation with the approval of Eul corporation, and remaining members of the joint supply and demand organization were succeeded to the shares of Eul corporation, and continued the construction after concluding a contract reflecting the change in the ratio of the construction and investment, but the construction was not completed upon completion of the construction. In a case where the contract terms entered into by Gap, etc., considering the language and structure of the contract terms of the joint supply and demand agreement entered into by Gap corporation, the "contractor's failure to perform" under the guarantee contract terms refer to the contractor's failure to perform the contractor's duty, and thus, it can be concluded that Gap corporation's obligation to pay the remaining members of the joint supply and demand for the contract remainder after Gap's withdrawal.

1. Factual basis

According to the reasoning of the lower judgment and the record of the first instance judgment cited by the lower court, the following facts are revealed.

(a) Conclusion of a contract agreement;

(1) On February 2012, the Plaintiff: (a) bid was conducted for the construction of accommodation facilities for the head of Pyeongtaek-gun and commander (hereinafter “instant construction”) which is part of the project for the relocation facilities of the U.S. military base in Korea, which was implemented in Pyeongtaek-si ( Address omitted); (b) concluded a joint supply and demand agreement on the instant construction project (hereinafter “instant joint supply and demand agreement”); and (c) constituted a joint supply and demand agreement (hereinafter “instant joint supply and demand agreement”). The investment ratio is 38% of the Ulsan-si construction; (d) the company south-si; (e) 15% of the promotion company; and (e) 10% of the comprehensive construction of the project.

(2) On February 27, 2014, the Plaintiff and the instant joint contractor entered into a contract for construction works (hereinafter “instant contract”). The members of the instant joint contractors shall either pay a contract bond to the Plaintiff or submit a performance bond to the Plaintiff according to the instant contract. The contract bond shall vest in the Plaintiff where the members of the instant joint contractors fail to perform their obligations under the instant contract without justifiable grounds (Article 8 of the General Conditions of the Contract for Construction Works).

(3) The instant joint supply and demand agreement was incorporated into the terms of the contract, and the main contents are as follows. The members of the instant joint supply and demand agreement shall be jointly and severally liable for the performance of their contractual obligations with respect to the Plaintiff (Article 6). Payment or payment is made individually to the members of the joint supply and demand organization (Article 8). If one of the members of the joint supply and demand organization fails to perform the contract without any bankruptcy, dissolution, default, or any justifiable reason, any partner other than the members may take a measure of withdrawal with the consent of the Plaintiff. In this case, the remaining members of the joint supply and demand organization shall jointly and severally perform the contract, and the shares of the members of the joint purchase

B. Conclusion of guarantee contracts

(1) According to the instant contract, the members of the instant joint supply and demand organization concluded a contract for performance guarantee with each of the Defendant with the respective parties as the guaranteed amount by setting the amount according to their respective investment rates among the contract deposits stipulated in the instant contract (hereinafter “each of the instant joint supply and demand agreements”), and submitted the performance bond to the Plaintiff upon obtaining a performance guarantee contract from the Defendant (hereinafter “instant joint supply and demand contract”).

(2) The main contents of the performance guarantee agreement included in each of the instant contracts (hereinafter “instant contract”) are as follows. In the event that a contractor fails to perform his/her obligations under the instant contract, the Defendant shall perform the obligations under the contract instead of performing such obligations or pay the relevant security deposit (Article 1). The Defendant shall, in principle, execute the performance of the guarantee in the event of a guaranteed accident caused by a contractor’s fault, and if it is impossible to perform the performance of the guarantee, the Defendant shall perform the guaranteed obligation with the payment of the relevant security deposit within the scope of the guaranteed amount specified in the instant contract or the relevant Acts and subordinate statutes (Article 3). In the instant contract concluded under the joint performance method, the Plaintiff may request the Defendant to perform the guaranteed obligation only when the remaining members of the instant contract fail to meet the requirements for the performance of the contract or even if they fail to perform the contract even if they fail to perform the contract (Article 4(2)).

C. Termination of the instant contract

(1) Pursuant to Article 119(1) of the Debtor Rehabilitation and Bankruptcy Act, Ulsan Construction was ordered to commence rehabilitation proceedings around October 2014 where the instant construction was in progress, and the custodian of Ulsan Construction (hereinafter the custodian does not separately state) notified the Plaintiff of the termination of the instant contract on the grounds of Article 119(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter the “Bankruptcy Act”).

(2) On November 2014, the rest of the members of the instant joint supply and demand company (hereinafter referred to as “the remaining members”) with the Plaintiff’s approval, withdrawn from the instant joint supply and demand company with the approval of the Plaintiff, and changed the ratio of investment into 60% of the remaining enterprises, 24% of the promotion enterprise, and 16% of the chemical construction. The Plaintiff and the remaining members entered into a contract by reflecting the aforementioned change in the investment ratio on December 2014 (hereinafter “instant modified contract”).

(3) After that, while the instant construction is being resumed, it was decided to commence the rehabilitation procedure around April 2015, by Gyeongnam Company. On May 2015, the custodian of Gyeongnam Company notified the Plaintiff of the termination of the instant contract in accordance with Article 119(1) of the Debtor Rehabilitation Act.

(4) The Plaintiff, among the remaining members of the Committee, urged the promotion company and the construction company to perform the construction project, except for the company in South and North Korea, but the promotion company and the comprehensive construction company failed to perform the project.

(d) Claim for deposit;

On June 2015, the Plaintiff notified the remaining members of the termination of the instant contract and requested the Defendant to perform the guaranteed obligation under each of the instant guarantee contracts. However, around September 2015, the Defendant paid only the remainder of the guaranteed obligation under each of the instant guarantee contracts, except the instant guarantee contract, to the Plaintiff.

2. Claim for a security deposit under the instant guarantee contract (ground of appeal Nos. 1 and 2)

A. The lower court rejected the Plaintiff’s assertion on the following grounds.

In the contract for joint performance method such as the contract of this case, since all the members of the joint supply and demand organization jointly assume the obligation to perform the construction work, even if some members waive the construction work, the joint supply and demand organization cannot be deemed to have fulfilled the contractual obligation if it is possible for them to perform the construction work only with the remaining members. In full view of the circumstances such as the fact that Article 4(2) of the terms and conditions of this case provides that all the members of the joint supply and demand organization of this case can not perform the contract of this case as the requirement for the claim for the payment of deposit, the guarantee accident stipulated in the contract of this case refers to the case where all the members of the joint supply and demand organization of this case are unable to perform the obligation under the contract of this case. Accordingly, the guarantee accident of this case

After the Ulsan Construction waived its construction, the remaining members were required to increase the equity shares for the completion of the remaining construction, so that the Ulsan Construction would withdraw from the joint supply and demand company of this case, and concluded the amendment contract of this case, thereby obtaining exemption from liability under the contract of this case, and the Plaintiff also approved it. Accordingly, prior to the occurrence of the guarantee accident of the first guarantee contract of this case, the liability of the Defendant under the contract of this case was extinguished, and the Defendant’s guarantee obligation under the first guarantee contract of this case was also extinguished pursuant to the main sentence of Article 459 of the Civil Act.

B. However, the lower judgment cannot be accepted for the following reasons.

(1) An uncertain incident refers to an uncertain accident that specifies the guarantor’s obligation to guarantee the performance of a contract. Whether such an accident is specific must be determined by taking into account the terms and conditions incorporated into account the contractual terms and the terms and conditions cited in the contract and the details of the principal contract (see Supreme Court Decision 2004Da16976, Apr. 28, 2006, etc.).

Article 1 of the Terms and Conditions of this case stipulates that the contractor, who is the contractor of the pertinent contract for guarantee, fails to perform the obligation under the contract for guarantee, shall be referred to as the "guarantee Accident". Then, Article 3 of the same Act provides for the method of performance of the guaranteed obligation, and Article 4 provides for the method of performance of the guaranteed obligation in the case of a contract for construction works concluded by a joint performance method under paragraph (2) separate requirements for the request for performance of the guaranteed obligation after distinguishing the contractor's non-performance of obligation as the contractor of the guarantee agreement from the contractor of the contract for construction works and the contractor's non-performance of obligation as the other members of the joint contractors. Considering the text and structure of the terms and conditions of this case, the "contractor's non-performance of obligation" prescribed by Article 1 refers to the contractor's non-performance of obligation as the contractor of the guarantee contract, which is the contractor of the joint performance method, and thus, it may be deemed that the contractor, among the members of the joint performance method, has caused the guaranteed obligation.

(2) According to the terms, etc. of the instant contract, the instant contract was terminated in the future by declaring the intention of termination of the instant contract by Ulsan Construction to the Plaintiff and Ulsan Construction. On the other hand, the remaining members continued to perform the duty of construction on the Plaintiff. As such, it is necessary for Ulsan Construction to withdraw from the instant joint supply and demand organization after the termination of the instant contract, with the Plaintiff’s consent, and then to divide the shares of Ulsan Construction according to their respective investment rates. Accordingly, the remaining members entered into the instant modified contract with the Plaintiff and revised only the share ratio of the joint supply and demand organization members of the instant contract. Accordingly, the instant modified contract does not expressly state that the remaining members succeed to the portion of the share ratio of the joint supply and demand organization members of the instant contract with respect to the various obligations owed by the Ulsan Construction to the Plaintiff upon the termination of the instant contract. Considering such circumstances, the instant modified contract is not the nature that the remaining members would normally assume upon succession, but it does not objectively mean that the Plaintiff and the remaining members succeed to the remainder of the contract with the Plaintiff in the future construction agreement.

(3) Ultimately, since the occurrence of the instant guarantee contract occurred when the Ulsan Construction terminated the instant contract, and the remaining members failed to perform their obligations under the instant contract, the Plaintiff is entitled to claim payment of the deposit under the instant guarantee contract upon the performance of the guaranteed obligation to the Defendant. Therefore, the lower court erred by misapprehending the legal doctrine on the occurrence of the guaranteed accident and the assumption of the obligation exempt from liability under the contract and the guarantee contract in which the joint contractor is involved, thereby adversely affecting the conclusion of the judgment by failing to exhaust all necessary deliberation. The allegation contained in the grounds of appeal on this point is with merit.

3. Claim for damages for delay resulting from delay in the payment of deposit (Ground of appeal No. 5)

The lower court rejected the Plaintiff’s claim for damages for delay on the ground that the Defendant had justifiable reasons to postpone the payment of the deposit under the remainder of the guarantee contract except for the first guarantee contract of this case during the period of the bid process for the guarantee performance through the guarantee performance company in accordance with the agreement with the Plaintiff.

Examining the reasoning of the lower judgment in light of the record, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

4. Conclusion

The part of the judgment of the court below regarding the claim for the deposit under the guarantee contract No. 1 of this case is reversed without examining the remaining grounds of appeal, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)