[공사대금·공사대금][미간행]
Where the contractor has to settle the construction cost due to the cancellation of the construction contract without completion of the construction work, the method of calculating the construction cost.
Articles 64, 665, and 673 of the Civil Act
Supreme Court Decision 94Da29300, 29317 Decided June 9, 1995 (Gong1995Ha, 2371), Supreme Court Decision 2000Da4095 Decided February 26, 2003 (Gong2003Sang, 891), Supreme Court Decision 2012Da39769, 3976 Decided May 24, 2013, Supreme Court Decision 2015Da225561 Decided November 26, 2015
Sejong Development Co., Ltd. (Seoulmunmun Law Firm, Attorney Park Jong-dae, Counsel for the plaintiff-appellant)
The administrator of the rehabilitation debtor ELA Construction Corporation, the administrator of the non-party 1's lawsuit taking over the lawsuit, the rehabilitation debtor ELA Construction Corporation, the administrator of the non-party 2's lawsuit taking over the lawsuit, the rehabilitation debtor YA Construction Corporation, the administrator of the non-party 2, the lawsuit taking over the lawsuit of the non-party 3 (Law Firm Han-soo et al.,
Seoul High Court Decision 2016Na877, 884 decided July 5, 2016
The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).
The grounds of appeal are examined.
1. As to the argument regarding termination of the contract
For the reasons indicated in its holding, the lower court determined that the Defendant’s termination of a subcontract concluded between the Plaintiff was lawful. Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors
2. As to the assertion regarding the calculation of the price of the work for the work
A. In a case where a contractor is obliged to settle the construction cost due to the rescission of a construction contract without completion of the construction work and the settlement of construction cost due to the completed construction work, barring special circumstances, such as where there is a special agreement, the construction cost shall be calculated by applying the agreed total construction cost ratio to the total construction cost, which accounts for the construction cost already completed part of the total construction cost and the construction cost required for completion of the non-construction part. Therefore, in order to calculate the construction cost due to the fixed construction cost by adding the construction cost already completed part or deducting the construction cost required for completion of the non-construction portion from the agreed total construction cost (see Supreme Court Decisions 94Da2930, 29317, Jun. 9, 1995; 200Da4095, Feb. 26, 2003; 2095; 200Da409675, May 26, 2013; 205Da1675, May 27, 2016).
B. The lower court found that the portion of the “construction cost to be incurred in completing the unexecution part” appraised by the appraiser non-party 4 and non-party 5 of the first instance trial as follows: (a) there is no evidence to acknowledge the construction cost, because the basis for calculation method is unclear; and (b) the appraiser determined the “contract construction cost” as to the part of the construction cost for the construction cost for the four calendars convenience facilities constructed by the Plaintiff as KRW 1,757,40,000; and (c) it is difficult to recognize the said amount as the “agreement construction cost” immediately because the Plaintiff and the Defendant have determined ex post to calculate the existing construction cost; (d) it is difficult to calculate the construction cost for the construction work performed by the Plaintiff; (e) there is no evidence to acknowledge the construction cost incurred in completing the unexecution part; or (e) there is no special reason to calculate the construction cost by multiplying the existing construction cost by the ratio of the existing construction cost; and (e) the lower court determined the construction cost to be paid for the completed construction cost of KRW 2815, 260.
C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the said determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the calculation
3. As to the remaining grounds of appeal
For the reasons indicated in its reasoning, the lower court recognized the Plaintiff’s claim for additional construction costs (including value-added tax), accepted the Defendant’s claim for reimbursement, and rejected this part of the claim against the Plaintiff’s claim for materials costs, rejected the Defendant’s claim, and recognized KRW 7,50,00 as the amount of settlement of expenses incurred in performing official duties, and KRW 346,794,861 as the amount of subrogated payment to the participating enterprise in the construction work, and appropriated the Defendant’s claim for the offset by the method of statutory appropriation for payment on the ground that the Defendant and the Plaintiff did not designate the automatic claim subject to offset.
Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by violating the rules of evidence or
4. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jung-hwa (Presiding Justice)