2. Litigation costs shall be borne by the plaintiff.

A. On October 29, 1993, the Plaintiff awarded a contract for the construction of the new construction work to the Defendant U.S. Construction Co., Ltd. (the representative Kim Byungn, the Defendant U.S., the hereinafter referred to as the “Defendant U.S. Construction”), 60-11, and 10 lots of land set-off Seoul, Nowon-gu, Seoul, for the purpose of offsetting the construction cost of KRW 13,308,397,120 (the contract price at the first time was agreed that 95% of the amount calculated by multiplying the building area by the standard construction cost per the announcement of the Ministry of Construction and Transportation, but the contract was made four times later, and the amount was finally determined). The contract was made on October 18, 1996; the total construction cost per day for delay was 1/1,000 (hereinafter referred to as the “contract for the construction of this case”).

B. Around December 14, 1994, Defendant Newsung Co., Ltd. (hereinafter “Defendant Sungsung”) and Defendant Sungwon Construction Co., Ltd. (hereinafter “Defendant Sungwon Construction”) jointly and severally guaranteed the Plaintiff’s performance of the instant construction contract with the following content: “In the event that the Plaintiff’s construction breached this contract, the Plaintiff will faithfully perform all the contractual breachs of the Defendant U.S. Construction, as well as any damage incurred to the Plaintiff due to the breach of the contract for Defendant U.S. Construction would be entirely compensated by the Plaintiff.” (hereinafter “joint and several guarantee agreement”).

C. After the occurrence of a dispute over the construction cost, etc. of the instant construction contract, the Defendant U.S. Construction filed an application with the Plaintiff for arbitration against the Plaintiff for the payment of KRW 3,238,825,890 for the remainder of construction until the time of the K.S. Commercial Arbitration Board (hereinafter the instant first arbitral award) around March 20, 1996. From the K.S. Commercial Arbitration Board as of August 30, 1996, the Plaintiff paid the full amount of KRW 1,787,858,620 (the sum of the construction cost and the advance payment by December 1, 1995, which are the high interest rate of KRW 34.36%) and delay damages to the Defendant U.S. Construction as of August 30, 1996 (hereinafter the instant first arbitral award).

D. In relation to the instant construction contract on October 23, 1996, Defendant U.S. Construction filed an application for the second arbitration seeking KRW 7,896,630,230 in total, including the accounts payable for the payment of the construction cost, KRW 7,738,825,890 in total, and KRW 157,804,340 in total, and KRW 7,896,630,230 in total, with regard to the construction work in question. Accordingly, in the Korean Commercial Arbitration Board (Partial Determination) on March 10, 1997, Defendant U.S. Construction filed an application for the second arbitration seeking KRW 7,896,630,230 in total, and KRW 2.5 billion in total, within seven days from the date of delivery of the written partial adjudication to Defendant U.S. Construction (hereinafter the second arbitral award in this case).

E. On March 28, 1997, upon the application of the buyer of the apartment of this case, the approval of provisional use for the apartment of this case was issued by the competent Gu office on March 28, 1997, and the occupancy of the buyer was commenced, and on May 8, 1997, the Defendant U.S. Construction submitted to the Plaintiff a warranty bond from May 9 to May 8, 2000.

F. In the financial resources of the Korean Commercial Arbitration Board, it was recognized that the construction work of the apartment of this case was completed on June 28, 1997 with respect to the remainder of the claim under Article 9611-059 of the Arbitration Act (the plaintiff argued that the construction work of this case cannot be paid due to the non-construction of the apartment of this case at the time) and that the plaintiff would pay the payment of the remainder of the construction work (the remainder of the construction work of this case less KRW 638,803,061,00 from KRW 3,238,825,890 to KRW 638,803,061) and the delay damages for the delayed payment of the construction work of this case (the third arbitral award of this case) (the third arbitral award of this case).

G. On April 30, 1997, the defendant Save Construction filed a lawsuit seeking a judgment of execution against the second arbitral award of the Seoul District Court 97Gahap31699, the same court 97Gahap5022 on July 25, 1997 (the two cases were consolidated). On October 7, 1997, when the lawsuit is pending, the non-party 1 corporation was assigned 5,100,02,829 (2,50,000,000 among the second arbitral award of this case and 2,60,02,829 won on the third arbitral award of this case and the third arbitral award of this case and the judgment of execution against the plaintiff was delivered to the non-party 2,50,000,000 won on the claim of the above plaintiff 2,60,02,829 won on the third arbitral award of this case and the judgment of execution against the plaintiff 2,205,298.

H. Meanwhile, while the Plaintiff filed a lawsuit for setting aside each of the arbitral awards in this case with the Seoul District Court against each of the instant arbitral awards (the lawsuit for setting aside each of the instant arbitral awards was dismissed in the Seoul District Court Decision 97Gahap59246, Jan. 16, 1998; and the judgment of execution on each of the instant arbitral awards has become final and conclusive in the Seoul High Court Decision 98Na9351, Sept. 25, 1998) and each of the said arbitral awards became final and conclusive.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1-7, Gap evidence 3-3, Gap evidence 25-4, Gap evidence 26-1, 3-5, Eul evidence 1-22, Eul evidence 4-1 through 22, the whole purport of oral argument

2. The assertion and judgment

A. The parties' assertion

(1) During the process of receiving the third arbitral award of this case, Defendant U.S. 1 and Defendant Kim Byung-in submitted to the arbitral tribunal a copy of the monthly average construction report in the name of 100% as of January 9, 1997 that the apartment of this case had been completed by 30 billion won even until September 200, and submitted a copy of the monthly average construction report in the name of 100% as of January 9, 1997. ② The number of arbitration members of the arbitral tribunal purchased 500,000 Korean Commercial Arbitration KRW 50,00,000, KRW 140,000,000, KRW 140,000,000, KRW 106,000,000, KRW 184,000,000,000,000.

(2) Defendant Newness and Sungwon Construction are ① both the construction cost and liquidated damages as seen above are contractual obligations under the instant construction contract, and thus, the said obligation should also be jointly and severally liable pursuant to the instant joint and several liability agreement. ② Even if not, the instant joint and several liability agreement purported to hold the joint and several liability for damages arising from tort as well as the joint and several liability for damages. Accordingly, the money under the instant joint and several liability agreement shall be paid jointly and severally to the Plaintiff.

B. Determination as to the claim against Defendant U.S.I.D. Construction and Kim Byung-in

(1) First, we examine whether the facts alleged by the Plaintiff are acknowledged or not.

① According to each description of Gap's health class, Gap's evidence No. 8-1 (as evidence No. 25-1 of the same Act), as to whether the above monthly process report was forged or falsified, the fact that the monthly process report was prepared in the name of Park Young-soo, a supervisor of the construction of the apartment of this case, which was the purport that the apartment of this case completed 100% of the present construction as of January 9, 1997. However, as to the fact that the above monthly process report was forged, the above monthly process report was forged, the plaintiff's evidence No. 45-2, No. 46-3, and No. 53-1 of the above evidence No. 53, and the witness's testimony was merely the unilateral statement of Park Young-jin, and it is difficult to believe that all of them were the same as the above Gap's evidence No. 8-2, Gap's evidence No. 30, No. 32, and No. 54, and there was no other evidence to prove that the above facts were different from the plaintiff's evidence No. 1201 of the above.

② As to whether to purchase the arbitration commissioner, it is difficult to believe that the statement of No. 6-2, and testimony of a witness leapman as to whether to purchase the arbitration commissioner, and there is no other evidence to prove it, the Plaintiff’s above assertion is without merit.

③ According to the health section, Gap evidence 6-1, 5 through 7, and evidence Nos. 46-5 as to whether the plaintiff representative director interfered with the plaintiff's participation in the arbitration, the fact that the last net iron, the representative director of the plaintiff, was prosecuted on Jan. 11, 1999 due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the charge of attempted fraud, and the subsequent verdict of innocence on Sep. 16, 1999, which became final and conclusive by the Supreme Court on Apr. 10, 2001, and there is no counter-proof evidence. However, the fact that the last net iron was pronounced not guilty as a final and conclusive judgment of not guilty does not immediately mean that the defendants' complaint filed by the defendant U.S. Construction as to the purchase of the special prosecutor investigator by the defendant's office, and there is no evidence supporting Gap evidence No. 45-2, No. 53 and 23 of the witness's testimony.

④ As to whether a public prosecutor’s office, investigator, special debt, etc. against leapin facts, it is difficult to believe that the public prosecutor’s office, Gap evidence 6-2, Gap evidence 4-1 and 3, and testimony of a witness leapin by the witness leapin is inconsistent with the above assertion, and there is no other evidence to prove this differently, the plaintiff’s above assertion is also without merit.

(2) Ultimately, insofar as the Plaintiff’s aforementioned assertion is not acknowledged, the Plaintiff’s assertion of liability for tort damages against the said Defendants is without merit without examining further.

C. Determination as to the claim against the Defendant’s newness and construction of sexual origin

(1) As to the assertion of joint and several liability for nonperformance, in light of the Plaintiff’s assertion that there was part of the construction of the instant apartment, and that there was a claim for compensation for delay due to the delay of the construction site, as acknowledged earlier, the Plaintiff raised such assertion in each of the above arbitral awards. In the instant third arbitral award, the arbitral award ordering payment of KRW 2,600,022,829, which is the amount calculated by deducting the compensation for delay from the payment of the construction cost based on the total construction cost of the instant construction contract to the above time, was finalized. Thus, the Plaintiff’s damage claim and the compensation for delay arising from the failure to perform the said construction against the said Defendant did not accrue, or was deducted from the amount of the construction price claim against the said Defendant against the said Defendant, and thus, the Plaintiff cannot claim the said right against the said Defendants, a joint and several surety, unless there are any special circumstances.

(2) Next, in relation to joint and several liability for joint and several liability for tort, the part that is not recognized as tort liability for Defendant U.S. Construction, the principal debtor of the instant joint and several liability letter of joint and several liability is identical to that of the above 1.B. As such, the Plaintiff’s assertion of joint and several liability for tort against the said Defendants is without merit.

3. Conclusion

Therefore, the Plaintiff’s claim against the Defendants of this case is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Judges Yoon Jae-ho (Presiding Judge)