대여금
1. The Defendant (Counterclaim Plaintiff) paid KRW 80 million to the Plaintiff (Counterclaim Defendant) and the Plaintiff’s objection thereto from May 1, 2013 to September 26, 2013.
1. The summary of the case (based on the recognition of facts) was without dispute; evidence Nos. 1 through 6; evidence No. 2-2; evidence No. 3-7; 11; and each statement No. 4 through 7, 11; and 13; the purport of the entire pleadings; and the purport of the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) of the entire pleadings made loans to the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) at an annual interest rate of KRW 190 million on four occasions from September 17, 2012 to April 27, 2013; and the Defendant paid interest of KRW 10 million to the Plaintiff two times until March 28, 2013.
On August 21, 2012, the Defendant: (a) concluded a contract with the Plaintiff for the construction cost of KRW 884,252,00 (including VAT); (b) the construction period from August 27, 2012 to February 26, 2013; and (c) the penalty rate of KRW 1/100.
In other words, on September 11, 2012, the Defendant concluded a contract for the instant construction work with a limited liability company (hereinafter “the construction with wheels”), setting the construction cost of KRW 720,000,000 (excluding VAT) and the construction period from September 18, 2012 to March 20, 2013 (which did not set the rate of liquidated damages).
A summary of the Defendant’s defense and counterclaim claim: (a) the Plaintiff is the contractor of the instant construction, notwithstanding the contract concluded on September 11, 2012; and (b) the Plaintiff obtained approval for use of the building on or around June 28, 2013, past 100 days from March 20, 2013, which was the due date for the completion of the instant construction; (c) thus, the Plaintiff is obligated to pay the Defendant penalty for delay (=88,425,200 won x 00 won x 0.01 x 100 days).
If the above claim for liquidated damages is offset against the Plaintiff’s loan claim on an equal basis, the Plaintiff should pay 8,425,200 won to the Defendant and damages for delay after the counterclaim was served.
2. 판 단 쟁점에 관한 판단 : ▷아래에서 보는 사정을 종합하면, 피고는 오륜종합건설에게 새로이 이 사건 공사를 도급하였다고 봄이 옳고, 피고 제출 증거만으로는 원고가 오륜종합건설의 피고에 대한 도급계약상의 채무를 보증하였다고 보기도 어렵다.
Therefore, it is true.