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(영문) 서울고등법원 2017.03.16 2016나2058377

근저당권말소

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1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. Basic facts

A. The parties concerned are the business operators constructing the D-building (hereinafter “instant building”) on both E and F sites in two weeks with the trade name “D,” and the Plaintiff A is a construction contractor awarded a contract from the Defendant for the construction of the instant building.

G is managing the plaintiffs company as the representative director of each of the plaintiffs A and B.

B. On June 4, 2012, the Defendant entered into a contract for construction works of the instant building between the Plaintiff A and the Defendant with the following content (hereinafter “instant contract for construction works”).

1. Construction name: Construction of a new complex building in both weeks;

2. Construction site: Gyeonggi-do E, and F.

3. Date of commencement: Date scheduled for completion on June 4, 2012: The contract amount: 9,900,000,000 won (including surtax) on June 10, 2013;

8. Late portion: The 11. at intervals of once a month for two months after the commencement of the project, and at intervals of two months after the commencement of the project; the rate of delayed payment: 0.01% for delayed payment: the defendant and the contractor A: the plaintiff

C. Plaintiff A and the Defendant: (a) the term of completion stipulated in the instant construction contract (which was scheduled as June 10, 2013 at the beginning, but was delayed on October 29, 2013 due to the delay in construction; (b) the date of completion on February 28, 2014.

In addition, the Defendant failed to comply with the terms and conditions of the first agreement, and the Defendant paid the construction cost to the Plaintiff A through a trust company (Korea Asset Trust Company). The Plaintiff was unable to receive the construction cost from the subcontractor companies without paying the said money to the subcontractor companies. The subcontractor companies of the instant building construction were to claim direct payment for the Defendant. The terms and conditions of the first agreement: Security 500,000,000,000 won for the contractor (Plaintiff A): the contractor (the Defendant’s contractor received the instant building and the contractor received the construction of the building in question).