[공사대금·부당이득금반환등][공1996.4.15.(8),1040]
The criteria and criteria for the distinction between incomplete and defective defects in the construction contract work and the criteria for its determination.
The criteria to distinguish between the failure to complete construction works and the failure to complete construction works are deemed to have been completed if the last process intended to be interrupted during the construction works is not completed. However, if the construction works are to be repaired due to incomplete construction works, it shall be interpreted that the last process intended to be completed is not only to have defects in the objects but also to have defects in the construction works. Whether the last process scheduled to be completed in individual construction works has to be objectively determined in light of the specific contents of the contract for construction works in question and the principle of good faith.
Articles 64, 665, and 667 of the Civil Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Clean Mine Construction Corporation
Defendant (Counterclaim Plaintiff) and one other
Seoul High Court Decision 93Na3687, 36884 delivered on July 1, 1994
All appeals are dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).
The Defendant (Counterclaim Plaintiff, hereinafter only referred to as Defendant)’s grounds of appeal are examined.
1. On the first ground for appeal
The criteria to distinguish between the failure to complete construction works and the failure to complete construction works are deemed to have completed the construction works if the last process intended to be interrupted during the course of the construction works is not completed. However, if the construction works are to be repaired due to incomplete construction works, it is reasonable to interpret that the construction works are completed, but it is nothing more than that there is any defect in the object. Whether the last process scheduled in individual construction works has been completed should be objectively determined in light of the specific contents of the construction contract and the good faith principle (see Supreme Court Decision 94Da32986 delivered on September 30, 1994).
According to the reasoning of the judgment below, on March 23, 1990, the court below acknowledged that the plaintiff (Counterclaim defendant, hereinafter the plaintiff) entered into a contract for the extension and renovation of the building for the private bath and bath in this case with the defendants on March 23, 199, and the part performed by the plaintiff was part of the construction ordered by the defendants. Thus, the plaintiff completed the construction of this case on December 17, 190. The plaintiff completed the construction of the outside bricks to the above building. The plaintiff failed to perform part of the construction of this case as stated in the judgment of the court below, but it was possible for the defendants to execute the construction at the same time as or after the completion of the construction, because the above internal construction was not properly executed by the defendants, and it was just for the plaintiff to complete the construction preparation but completed the construction without completing the construction, and there was no violation of the rules of evidence, such as the details of the construction of this case and the ratio of the construction to the completion of the construction of the construction in this case.
2. On the second ground for appeal
According to the records, the court below's rejection of the defendants' assertion that the plaintiff's construction costs, such as rupture repair of underground stairs, underground concrete repair, North Korean wall removal and reconstruction, etc. due to defects, among the construction parts executed by the plaintiff, have not been proven, is just and there is no violation of the rules of evidence, such as theory of lawsuit, nor incomplete deliberation, etc.
3. On the third ground for appeal
According to the records, the court below is just in rejecting the defendants' assertion that the defendants provided the building of this case as collateral and received the loan from the non-party Chowon Mutual Savings and Finance Company and paid the plaintiff as part of the construction price of this case. The plaintiff's assertion that the plaintiff would bear the expenses incurred in the loan of this case and interest on the loan of this case is justified and there is no violation of the rules of evidence, such as theory of lawsuit
4. Therefore, all appeals are 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 Cho Chang-tae (Presiding Justice)