[2] Where the construction is delayed due to a cause not attributable to the contractor, the meaning of the cause for which the number of delayed days cannot be responsible to the contractor

[2] Where a contractor’s delay is due to a cause not attributable to the contractor, the period should be excluded from the number of delayed days. However, the reason why the number of delayed days is not attributable to the contractor was unexpected in the construction contract, and the reason why the contractor could not be responsible for the contractor should have proved that the delay was inevitable due to the occurrence of the construction contract, and it can only be considered in the reduction of the estimated amount of compensation when there is a possibility that the construction period will be extended in conjunction with the cause attributable to the contractor.

The costs of appeal are assessed against the defendant.

1. Unless there are other special reasons in the contract for construction work, the contract terms, such as the parties to the contract and the scheduled date of completion, must be acknowledged under the contract, and the defendant's assertion that the defendant becomes the formal party to the contract of this case to reduce value-added tax, or there were reasons such as design modification during the construction work, cannot be viewed as bearing the liability as the contractor of the contract of this case, or as the scheduled date of completion under the contract of this case has been changed. Thus, the court below is just in rejecting the defendant's assertion that the contractor and the scheduled date of completion of the contract of this case were recognized based on the contract between the defendant and the contractor, and the plaintiff and the appointed party's argument that the completion of the construction was delayed at the request of the contractor of this case, and there

2. It cannot be deemed that the agreed completion date has been changed just because the design has been changed due to the circumstances of the contractor because the scheduled completion date set forth in the contract for construction work was close to the scheduled completion date set forth in the contract for construction work. Thus, claiming compensation for delay against the contractor cannot be deemed as an exercise of the right contrary to good morals and other social order. The Supreme Court Decision 97Da2221 Decided June 24, 1997, which was alleged in the ground of appeal by the defendant, cannot be invoked in this case.

It is reasonable that the court below recognized the change of design, etc. in the construction work of this case and considered it only as the grounds for reduction of liquidated damages, and there is no illegality affecting the conclusion of the judgment as otherwise alleged in the ground of appeal

3. The basis for calculation of liquidated damages is stipulated as a contract between the parties. Thus, the court below recognized that the parties agreed to calculate the liquidated damages based on the construction price when concluding the contract in this case by integrating the evidence of employment, and it is just to calculate the liquidated damages in this case based on the provisions on liquidated damages in the contract between the parties. There is no illegality that affected the conclusion of the judgment as otherwise alleged in the ground of appeal, and the Supreme Court Decision 94Da5530 delivered on January 26, 1996, which is alleged in the ground of appeal by the defendant, cannot be invoked in this case as it differs from the case.

4. Generally, in a construction work contract, the obligation to pay the construction cost and the obligation to complete the construction is not necessarily in the simultaneous performance relationship, but delays the obligation to pay the construction cost as to the completed portion of the construction which the contractor bears the contractual obligation, and even if the contractor completes the construction, the contractor may refuse the obligation to complete the construction until such cause is resolved.

However, in this case, the defendant's argument in the grounds of appeal that the contractor and the designated parties are not liable for delay due to the right of simultaneous performance, on the erroneous premise that the obligation of the intermediate payment and the completion of the work in the contract are in a simultaneous performance relationship without any assertion or proof as to the fact that there is a significant reason for difficulty in performing the obligation of the payment of the construction cost after the completion of the construction work, is not acceptable.

5. Where the construction is delayed due to any cause not attributable to the contractor, the period should be excluded from the number of delayed days. However, the reason why the number of delayed days is not attributable to the contractor should have been unexpected in the construction contract, and due to such circumstance, it should have been proven that the delay of construction was inevitable due to the impossibility of performing the scheduled construction for a certain period, and it can only be considered in the reduction of the estimated amount of compensation when there is a possibility that the construction period will be extended in conjunction with the cause attributable to the contractor.

In addition, the judgment of the court below as to whether the cause occurred during the construction work constitutes a cause for deducting the number of days of delay, and whether the amount of compensation for delay constitutes a cause for deducting the number of days of delay is within the discretionary power of the court below, unless it is remarkably unreasonable in light of the empirical rule and the principle of fairness. In light of the records, there is no material to consider that the judgment of the court below is considerably unreasonable in light of the empirical rule and the principle of fairness. Therefore, in calculating the compensation for delay, the court below is just in calculating the compensation for delay, and the court below

6. We cannot accept the defendant's ground of appeal that it is consistent with the empirical rule that the contractor and the contractor agree not to hold the contractor liable for delay merely because the contractor paid the construction cost without any assertion or proof as to the fact that the contractor agreed to settle the construction cost in consideration of the liquidated damages after the completion of the construction work.

7. In the contract for construction work, the completion of the building was delayed, and the decision whether the contractor's responsibility for the delay was to be exempted from the contractor's liability, or whether the compensation amount was to be considered in the reduction of the contractor's liability is subject to the exclusive authority of the court below unless the decision of the court below is considerably unreasonable in light of the empirical rule and the principle of fairness. Since there is no evidence that the decision of the court below is remarkably unreasonable, the defendant

8. Therefore, the Defendant’s ground of appeal is without merit, 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 Lee Hong-hoon (Presiding Justice)