Law Firm Doo-ju, Counsel for the plaintiff-appellant

[Defendant-Appellee]

Law Firm Prior Sea, Counsel for the plaintiff-appellant

Attorney Lee Jong-ho, Ha-ho

2. The plaintiff's appeal and the additional selective claims filed by this court are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 561,940,36 won with 12% interest per annum from the day following the delivery date of the application for modification of the purport of the claim and the cause of the claim of this case to the day of complete payment (the plaintiff shall be entitled to the plaintiff's claim for construction payment at the first instance court, but he shall be entitled to selective addition of the claim for damages due to nonperformance of the construction contract to the court

2. Purport of appeal

A. The plaintiff

The part against the plaintiff falling under the order to pay under the judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 203,50,000 won with 5% interest per annum from June 20, 2019 to December 5, 2019, and 12% interest per annum from the next day to the date of full payment.

B. Defendant

The text of paragraph (1) is as follows.

A. Status of the parties

The plaintiff is a construction business operator specializing in the construction of solid containers in semiconductor factories, etc., and the defendant is a company that holds a construction license for solid containers.

B. Conclusion of subcontract agreements between the defendant and G stock company

1) The defendant has been awarded a subcontract for the Coding Corporation (hereinafter referred to as "the E") among E projects from G Co., Ltd. (hereinafter referred to as "G"), C Coding Corporation (hereinafter referred to as "the instant E project"), C Coding Corporation among F Co., Ltd. (hereinafter referred to as "the instant G Co., Ltd"), and Coding Corporation among F Co., Ltd (hereinafter referred to as "the instant G Co., Ltd.") (hereinafter referred to as "each of the instant construction works").

A person shall be appointed.

2) On the 26th day of each month, G issued a tax invoice to the Defendant after determining the amount of the base payment for that month, and upon the fifth day of the following month, G paid the amount of the base payment to the Defendant.

3) The initial cost of each of the instant construction works for which each month has become final and conclusive is as shown in the attached Table. The conclusion of the construction contract between the Plaintiff and the Defendant and the subsequent progress are as follows.

1) The Plaintiff and the Defendant undertake each of the instant construction works with the burden of the construction cost, and the Defendant concluded to pay part of the subscription price received from G as the construction cost to the Plaintiff on the 10th of each month (hereinafter “each of the instant construction contracts”).

2) The Plaintiff continued each of the instant construction works until December 2017, and the Defendant directly proceeded with each of the instant construction works.

[Ground of recognition] Facts without dispute, Gap evidence 3, 9 through 14, Eul evidence 1 through 3, 6 through 15, 22 through 25, 31, 33, 38, and 40 evidence (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the claim for construction price

A. Summary of the parties' assertion

1) The Plaintiff and the Defendant are obligated to pay to the Plaintiff the sum of the following construction cost ( = 68,692,215 won + KRW 373,646,121 + KRW 119,602,00) and damages for delay, out of the subscription price for each of the instant construction works received from G in accordance with the instant construction contract.

① The instant E Corporation: from December 2, 2015 to April 2018, 2015, 93% of the prepaid price (including direct and indirect expenses) to April 2018, the remainder of 68,692,215, excluding the prepaid amount.

② The instant Amateur Corporation: From May 2017 to June 2018, 88% of the base price (including direct and indirect expenses) to June 2018, the remainder of KRW 373,646,121, excluding the base price.

③ The instant Pyeongtaek project: from November 2017 to November 201, 2018, the remainder of KRW 119,602,000, excluding the amount paid from 88% of the base price (including direct and indirect expenses) to the remainder of KRW 119,602,00.

2) The construction cost that the Defendant and the Defendant agreed to pay to the Plaintiff is limited to the amount calculated by subtracting the fee from the direct fee, not from the total amount of the subscription price received from G. Since the Plaintiff performed each of the instant construction works only until December 2017, the Plaintiff is not obligated to pay the subscription price incurred after January 2018.

Meanwhile, the construction cost that the Defendant has already paid to, or paid on behalf of, the Plaintiff shall be deducted from the above construction cost, and the calculation thereof shall not include the remainder of the construction cost under each of the instant construction contracts that the Defendant should pay to the Plaintiff.

Even if the construction cost to be paid by the Defendant to the Plaintiff in relation to the instant family construction remains, the Defendant paid the Plaintiff the construction cost in excess of KRW 204,597,280 as the construction cost relating to the instant family construction, and the Defendant did not pay the construction cost to the Plaintiff if it offsets the Plaintiff’s claim for return of unjust enrichment regarding the excess payment against the remainder of the construction cost due to the Plaintiff’s claim for return of unjust enrichment.

B. Determination

1) If there is no dispute between the parties to the calculation standards and the calculation period of the construction cost, or if the purport of the entire argument is added to the statement in the evidence Nos. 1, 3, 22, 24, and 25 of the construction contract (Evidence No. 1) for the ASEAN Corporation, the "8% of the monthly payment for the construction work (direct payment)" is set as the "amount for the construction work service contract for the E Corporation (Evidence No. 3)", and the "amount for the 93% of the monthly payment for the completed portion (direct payment)" is set as the amount for the respective payment for the completed portion for the construction work. The defendant, on December 11, 2017, paid to the plaintiff on November 1, 2017, with the amount of 33,527,500 won in direct payment for the construction work and the amount of 8% in consideration of the fact that the contract for the construction work in this case was paid to the plaintiff without any special consideration.

In addition, as seen earlier, the Plaintiff continued each of the instant construction works only until December 2017, and there is no evidence to prove that the Plaintiff was further proceeding with each of the instant construction works. Accordingly, the construction cost under each of the instant construction contracts that the Defendant is obligated to pay to the Plaintiff ought to be calculated on the basis of the base price accrued until December 2017.

2) The instant E Corporation

A) Determination on the cause of the claim

The Defendant’s advance payment for the instant Ework paid from G is as shown in attached Table 1. Of the advance payment from December 2, 2015 to December 2, 2017, the direct payment is 291,067,750 won, and the Defendant agreed to pay the Plaintiff 93% of the advance payment for the instant E Work paid from G, as seen earlier. Thus, the Defendant is obligated to pay the Plaintiff the Plaintiff the advance payment for the instant E Work, barring any special circumstances. Therefore, barring any special circumstance, the Defendant is obligated to pay the Plaintiff the direct payment for the construction cost of the instant E Work, KRW 270,693,07 ( = 291,067, KRW 750, KRW 93, KRW 90, KRW 100, KRW 200, KRW 2700, KRW 750, KRW 93, and KRW 2

B) Judgment on the defendant's defense

If there is no dispute between the parties, or if the purport of the entire pleadings is added to the respective statements in Gap evidence Nos. 13, Eul evidence No. 9, 10, 34, 37, 51, and 52, the defendant paid KRW 265,934,382 as the construction cost for the instant E Corporation from January 9, 2016 to November 10, 2017. The plaintiff and the defendant paid KRW 5,181,300 in total to the plaintiff as the construction cost for the instant E Corporation. Further, it is recognized that the plaintiff paid KRW 1,770,00 in lieu of the usage fee for the office equipment used for the instant E Corporation, and the fact that the plaintiff and the defendant concluded each construction contract for the instant case is agreed to bear the expenses of the Corporation.

In the end, in the construction cost of the instant E E E E E-work as above, 272,885,682 won ( = 265,934,382 won + 5,181,300 won + 1,770,00 won) is deducted from the Defendant’s total construction cost of the construction cost of the instant E-work in KRW 270,693,07,07, it is apparent that the Defendant paid the Plaintiff the construction cost of the instant E-work in excess of KRW 2,192,675 ( = 272,85,682 won - 270,693,07).

C) Sub-determination

Therefore, as the defendant's defense is reasonable, the plaintiff's claim for construction cost concerning the E-work of this case is without merit.

3) The ASEAN Corporation

A) Determination on the cause of the claim

The Defendant’s contract to pay to the Plaintiff 8% of the direct cost out of the subscription price received from G is as shown in attached Table 2, and the direct cost is KRW 1,446,132,400 out of the subscription price from May 2, 2017 to November 2017, and the Defendant agreed to pay 1,272,596,512 ( = 1,46,132,400,400,000) and damages for delay thereof to the Plaintiff, barring any special circumstances. Therefore, the Defendant is obligated to pay to the Plaintiff the Plaintiff the contract price for the instant Asan Corporation as the construction price for the instant Asan Corporation (=1,446,132,400,000) and the damages for delay.

B) Judgment on the defendant's defense

If there is no dispute between the parties, or if the purport of the entire argument is added to the statement in the evidence Nos. 15, 34, 35, 46, 55, and 56, the Defendant paid the Plaintiff totaling KRW 1,155,909,351 to December 11, 2017. The Defendant paid the Plaintiff totaling KRW 1,155,909,351 to the construction cost for the instant Agsan Corporation from May 2017 to December 2017, 18,095,731 won, including the national pension, employment insurance, income tax, automobile insurance, container acquisition tax, etc., which the Plaintiff and its employees should pay from May 2017 to December 2017. Furthermore, it is recognized that the Plaintiff concluded an agreement on construction contract in lieu of the Plaintiff and its employees to bear the expenses as seen earlier.

As to this, the Plaintiff asserts to the effect that all wages were paid to the above worker on December 2017. However, according to the evidence No. 15, it is recognized that the time when the Plaintiff paid all wages to the worker K, etc. on or before December 19, 2017. In light of the time of payment, etc., the Plaintiff appears to have paid the wages on November 2017. Accordingly, the Plaintiff’s above assertion is rejected.

In the end, it is clear that, as above, the Defendant’s construction cost in the construction cost of the instant Asan Industries was paid in excess of KRW 1,477,193,79,792 ( = 1,155,909,351 + + 18,095,731 + 303,18,710 + 303,18,710) of the Defendant’s total construction cost of the instant Asan Industries, which the Defendant is obligated to pay to the Plaintiff, was paid in excess of KRW 204,597,280 ( = 1,477,193,792 KRW -1,272,596,596,512).

C) Sub-determination

Therefore, as the defendant's defense is well-grounded, the plaintiff's claim for the construction cost of the Asan Corporation is without merit.

4) The instant Pyeongtaek Corporation

A) Determination on the cause of the claim

The Defendant’s contract to pay the Plaintiff 88% of the direct cost out of the subscription price for the instant Pyeongtaek Construction received from G is as shown in attached Table 3, and the direct cost is 89,889,880 won out of the subscription price that the Plaintiff performed from November 2017 to December 2, 2017, and the Defendant agreed to pay the Plaintiff 88% of the subscription price for the instant Pyeongtaek Construction paid from G. Thus, the Defendant is obligated to pay the Plaintiff the payment of the contract price for the instant Pyeongtaek Construction as KRW 79,103,094 (= KRW 89,889,880 KRW x88%) and the delay damages therefrom, barring any special circumstances.

B) Determination as to the defendant's defense of deduction and repayment

Around December 2, 2017, the Defendant paid KRW 18,40,170 to the Plaintiff as construction cost for the instant Pyeongtaek Construction. The fact that the Plaintiff paid KRW 11,104,030 on behalf of the Plaintiff for the construction cost does not conflict between the parties. Furthermore, the Defendant paid KRW 690,220 in total as the national pension insurance premium, employment insurance premium, income tax, etc. to be paid by the Plaintiff and its employees on December 2, 2017. In addition, it is recognized that the Plaintiff paid KRW 49,778,947 in total as wages, etc. for the instant Pyeongtaek Construction, and that the Plaintiff and the Defendant agreed to pay the Plaintiff for each of the instant construction cost on behalf of the Plaintiff. Meanwhile, the Defendant recovered KRW 70,700 as the Plaintiff’s lease deposit and the Defendant concluded the construction contract instead of the Plaintiff.

In conclusion, in 79,103,094, the construction cost of the instant Pyeongtaek Corporation as seen above was deducted from KRW 79,973,367 (=18,400,170 + KRW 11,104,030 + + KRW 690,220 + KRW 49,778,947 + KRW 7,000,000 for accommodation lease deposit recovered by the Defendant, which the Defendant would have to pay to the Plaintiff. It is clear that the construction cost of the instant Pyeongtaek Corporation was to be paid by the Defendant to the Plaintiff = 6,129,727 (=79,103,094 – KRW 79,973,367 + KRW 7,000 + KRW 7,00) and damages for delay on the Plaintiff’s account of set-off).

As seen in the above 3) The Plaintiff was paid in excess of KRW 204,597,280 as the construction cost for the instant Asan Corporation by the Defendant. Therefore, barring any special circumstance, the Plaintiff is obligated to return the excess amount to the Defendant as unjust enrichment, barring any special circumstance.

Meanwhile, according to the evidence revealed earlier, KRW 6,129,727 of the Plaintiff’s remaining claim for the construction cost as to the instant Pyeongtaek Construction became due on January 10, 2018, which was the date of payment for the payment for the portion of December 10, 2017. The Defendant’s claim for return of unjust enrichment was established at least 204,597,280 on March 19, 2018 (Evidence 56), and both claims were in offset on March 19, 2018, and it is clear that the Defendant’s written brief on October 13, 2020, which was declared a offset, reached the Plaintiff on March 19, 2018.

Therefore, it is clear that the Plaintiff’s claim for the payment of the construction cost as to Pyeongtaek Construction and its delay damages amounting to 68,518 won [ = 6,129,727 won x 6% per annum under the X Commercial Act x 68/365 (from January 11, 2018 to March 19, 2018)] totaling 6,198,245 won ( = 6,129,727 won + 68,518 won) retroactively from the date of the set-off, was terminated within the scope of equal amount among the Defendant’s claim for return of unjust enrichment, 204,597,280 won, which is to be paid by the Defendant to the Plaintiff. Ultimately, it is clear that the construction cost as to Pyeongtaek Construction is not remaining.

D) Sub-committee

Therefore, since the defendant's defense is well-grounded, the plaintiff's claim for the construction cost of the Pyeongtaek Construction also is without merit.

3. Determination on the claim for damages

A. The plaintiff's assertion

The Defendant asserts to the effect that, in violation of each of the instant construction contracts, the Plaintiff arbitrarily excluded the Plaintiff from the construction site on January 2018, the Defendant should compensate the Plaintiff for damages equivalent to the lost income that the Plaintiff could have acquired from January 2018 to the completion date of each of the instant construction contracts.

B. Determination

The evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendant arbitrarily excluded the Plaintiff from the construction site of this case, and there is no other evidence to acknowledge this differently, and therefore, the Plaintiff’s claim for this part is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed in its entirety on the ground that it is without merit. Since the part against the defendant in the judgment of the court of first instance is unfair with different conclusions, it shall be accepted by the defendant's appeal, and the plaintiff's claim corresponding to the cancellation portion shall be dismissed. The plaintiff's appeal and the additional selective claim added by this court shall be dismissed

Judges Song-dae

Judges Kim Gung-sung

Since then, the plaintiff acquired a contract from I Co., Ltd. and continued construction from December 2015.

2) Attached Table 1: The sum of items of direct expenses out of each period of payment from 3 times December 2015 to 17 November 2017, written in Attached Table 1>

(i) Three times + 18,763,150 won + 4 times + 15,206,050 won + 5 times + 6,962,250 won + 7 times + 4,025,70 won + 8 times.

9,467,20 won + 9 times 8,223,150 won + 10 times 26,190,000 won + 11 times + 22,50,300 won + 12 times 23,373,100 won + 13 times.

30,057,200 + 35,205,80 won in 14 times + 4,077,60 won in 15 times + 16,257,200 won in 16 times + 17 times in 19,564,90 won in 19,564,90 won in 15 times.

(The plaintiff did not claim in this case the amount of 1,2 times paid at the time when he was the subcontractor of this corporation.

Except for those, 18 installments paid on April 2018 includes 18 installments after the suspension of construction by the Plaintiff.

(2).

3) The total amount of direct expenses out of each period of payment from May 1, 2017 to November 7, 2017 listed in attached Table 2 (Attachment 2) (=the aggregate amount of direct expenses)

32,294,00 won + 2 times 142,884,00 won + 3 times 247,104,00 won + 3 times 222,173,400 won + 5 times 247,153,00 won + 6

Congress 345,229,400 + 7 times 209,294,600).

4) Additional recognition in the first instance court at 13,605,061 Won (No. 34 No. 1-15, 19) such as taxes and insurance premiums recognized in the first instance.

the sum of KRW 4,490,670 (Evidence 55), such as taxes and insurance premiums, shall be the aggregate amount.

5) 90,739,700 won (in the absence of any dispute) and 12,551,000 won (No. 46) such as fees for the use of equipment, material costs, etc. recognized by the first instance court.

No. 56) 199,898,010 won (Evidence No. 56), such as usage fees and material costs of equipment recognized as increased in the first instance.

the sum of all amounts.

6) The sum of items of direct expenses out of each period period from November 1, 2017 to December 2, 2017, listed in attached Table 3.

(i) 3,527,50 won at one time + 56,362,380 won at two times).

7) For the purpose of Article 492, Paragraph 1, of the Civil Code, "when the fulfillment period for both of them has come", the obligee is the obligor.

It means that the time for a claim for delay has arrived, and the time when the debtor has a delay in performance

It does not mean (see, e.g., Supreme Court Decision 81Meu10, Dec. 2, 1981). A bond with no fixed due date.

The obligee may demand reimbursement at any time at the time when the claim is established and the performance is ultimately due at the time when the claim is established.

I would like to say.

A person shall be appointed.