Law Firm LLC et al., Counsel for defendant-appellant

Attorney Kim Tae-tae et al.

Law Firm Domp et al., Counsel for the defendant-appellant

1. Factual basis

The following facts are revealed according to the reasoning of the lower judgment and the first instance judgment cited by the lower court and the record.

(a) Conclusion of a contract agreement;

(1) On February 2, 2012, the Plaintiff: (a) bid was conducted with respect to the construction of 's residential accommodation/large housing and accommodation facilities (hereinafter referred to as the "construction in the instant case"), which is part of the project for relocation facilities of the U.S. military base in Korea; (b) signed a joint supply and demand agreement regarding the instant construction project (hereinafter referred to as the "joint supply and demand agreement"), and signed a joint supply and demand agreement for the instant construction project (hereinafter referred to as the "joint supply and demand agreement"), thereby constituting a joint supply and demand agreement (hereinafter referred to as the "joint supply and demand agreement of this case"). The Plaintiff and joint supply and demand agreement of this case (hereinafter referred to as the "joint supply and demand agreement of this case"), which is part of the project for relocation facilities of the U.S. military base in Korea. (2) The Plaintiff and joint supply and demand agreement of this case, with respect to the instant construction project, shall belong to the Plaintiff on February 27, 2014, to the contract price of this case, 3050, 2008.

(3) The instant joint supply and demand agreement was incorporated into the terms of the contract, and the main contents are as follows. The members of the instant joint supply and demand agreement shall be jointly and severally liable for the performance of contractual obligations to the Plaintiff (Article 6), and advance payment or advance payment shall be individually paid to the members of the joint supply and demand organization (Article 8), and if any of the members of the joint supply and demand organization fails to perform the contract without any justifiable reason, such as bankruptcy, dissolution, default, etc., any partner other than the members concerned may take a measure of withdrawal with the consent of the Plaintiff. In this case, the remaining members shall jointly and severally perform the contract, and the equity shares of the member of the joint supply and demand organization shall

B. Conclusion of guarantee contracts

(1) According to the contract of this case, the members of the joint supply and demand organization of this case entered into a contract of this case with each of the defendant as the guaranteed amount by setting the amount according to their respective investment rates among the contract deposits stipulated in the contract of this case (hereinafter referred to as "each guarantee contract of this case"), and submitted a performance guarantee contract to the plaintiff under the contract of this case.

(2) The main contents of the performance bond clause included in the contract of this case (hereinafter referred to as the "contract of this case") are as follows. In the event that the contractor fails to perform his obligations under the contract of this case, the Defendant shall perform the obligations under the contract of this case instead of performing such obligations or pay the pertinent security deposit (Article 1). The Defendant shall, in principle, execute the guarantee contract of this case within the scope of the guaranteed amount as stipulated in the contract of this case or the relevant Acts and subordinate statutes, and if it is impossible to execute the guaranteed construction in the event the contractor's occurrence of the accident due to the cause attributable to the contractor, the Defendant shall perform the guaranteed obligation with the payment of the pertinent security deposit within the scope of the guaranteed amount. (Article 3) In the contract of this case concluded under the joint performance method, where some of the members of the joint contractors of this case are unable to perform the contract due to the cause such as dishonor, the Plaintiff may request the Defendant to perform the guaranteed obligation only if the remaining members are

(1) Pursuant to Article 119(1) of the Debtor Rehabilitation and Bankruptcy Act, Ulsan Construction was ordered to commence rehabilitation proceedings around October 2014, when the instant construction was in progress, and the custodian of Ulsan Construction (hereinafter the custodian does not separately state) notified the Plaintiff of the termination of the instant contract based on Article 119(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter the “Bankruptcy Act”).

(2) On November 2014, the rest of the members of the instant joint contractor except for the construction of Ulsan (hereinafter referred to as “the rest members of the instant joint contractor”) withdrawn from the instant joint contractor with the approval of the Plaintiff, and changed the ratio of investment into 60% of the remaining joint contractor, promotion enterprise 24%, and chemical comprehensive construction 16%. The Plaintiff and the remaining members entered into a contract for construction by reflecting the aforementioned change in the ratio of investment on December 2014 (hereinafter referred to as “instant modified contract”).

(3) After that, while the instant construction is being resumed, it was decided to commence the rehabilitation procedure around April 2015, by Gyeongnam Company. On May 2015, the custodian of Gyeongnam Company notified the Plaintiff of the termination of the instant contract in accordance with Article 119(1) of the Debtor Rehabilitation Act.

(4) The Plaintiff, among the remaining members of the Committee, urged the promotion company and the construction company to perform the construction project, except for the company in South and North Korea, but the promotion company and the comprehensive construction company failed to perform the project.

(d) Claim for deposit;

On June 2015, the Plaintiff notified the remaining members of the termination of the instant contract and requested the Defendant to perform the guaranteed obligation under each of the instant guarantee contracts. However, around September 2015, the Defendant paid only the remainder of the guaranteed obligation under each of the instant guarantee contracts, except the instant guarantee contract, to the Plaintiff.

2. Claim for a security deposit under the instant guarantee contract (ground of appeal Nos. 1 and 2)

A. The lower court rejected the Plaintiff’s assertion on the following grounds. In full view of the following circumstances: (a) in the contract for the joint performance method, such as the instant contract, all the members of the joint supply and demand organization jointly assume the duty of construction performance; (b) it cannot be deemed that the joint supply and demand organization fulfilled the contractual obligation if it is possible to perform the construction works only with the remaining members even if some members waive the construction works; and (c) Article 4(2) of the terms and conditions of the instant contract provides that all the members of the joint supply and demand organization are unable to perform the instant contract as the requirement for the claim for the payment of deposit; and (d) the guarantee accident stipulated under each of the instant joint supply and demand agreements refers to the case where all the members of the instant joint supply and demand organization are unable to perform the obligation under the instant contract. Accordingly, at the time of the waiver

After the Ulsan Construction waived its construction, the remaining members were required to increase the equity shares for the completion of the remaining construction, so that the Ulsan Construction would withdraw from the joint supply and demand company of this case, and concluded the amendment contract of this case, thereby obtaining exemption from liability under the contract of this case, and the Plaintiff also approved it. Accordingly, prior to the occurrence of the guarantee accident of the first guarantee contract of this case, the liability of the Defendant under the contract of this case was extinguished, and the Defendant’s guarantee obligation under the first guarantee contract of this case was also extinguished pursuant to the main sentence of Article 459 of the Civil Act.

B. However, the lower judgment cannot be accepted for the following reasons.

(1) An uncertain incident refers to an uncertain accident that may specify the guarantor’s obligation to guarantee the performance of a contract. Whether such an accident is specific must be determined by taking into account the terms and conditions incorporated into account by an agreement between the parties and the details of the principal’s performance guarantee and the contract cited by the terms and conditions (see, e.g., Supreme Court Decision 2004Da16976, Apr. 28, 2006).

Article 1 of the Terms and Conditions of this case stipulates that the contractor, who is the contractor of the pertinent contract for guarantee, fails to perform the obligation under the contract for guarantee, shall be referred to as the "accident of guarantee." Then, Article 3 provides the method of performance of the guaranteed obligation, and Article 4 provides for the method of performance of the guaranteed obligation in the case of a contract for construction works concluded by a joint performance method under paragraph (2) separate requirements for the request for performance of the guaranteed obligation after distinguishing the contractor's non-performance of obligation as the contractor of the guarantee contract from the contractor of the contract for construction works and the contractor's non-performance of obligation as the other members of the joint venture. Considering the text and structure of the terms and conditions of this case, the "contractor's non-performance of obligation determined by the guarantee accident" under Article 1 refers to the contractor's non-performance of obligation as the contractor of the contract for the guarantee contract, which is the contractor of the joint performance method, the contractor of the contract for construction works, among the members of the joint venture.

(2) According to the terms, etc. of the instant contract, the instant contract was terminated in the future between the Plaintiff and Ulsan Construction by declaring the intention of termination of the instant contract. Meanwhile, the remaining members continued to perform the duty of construction to the Plaintiff. As such, it is necessary to withdraw from the instant joint supply and demand organization after the Ulsan Construction terminated the instant contract, and then divide the shares of the members of the instant joint supply and demand organization according to their respective investment rates. Accordingly, the remaining members entered into the instant modified contract with the Plaintiff and revised only the shares of the joint supply and demand organization members of the instant contract. The instant modified contract does not expressly state that the remaining members succeed to the portion of the shares of the Plaintiff with respect to all obligations owed by the Ulsan Construction to the Plaintiff upon termination of the instant contract. Considering such circumstances, the instant modified contract is not a nature that the remaining members would normally assume upon succession, but an objective succession of the remaining members of the Plaintiff to the remainder of the contract is not sufficient to readily conclude that the Plaintiff and the Plaintiff entered into the instant modified contract with the Plaintiff as to the remainder of investment shares in the future.

(3) Ultimately, since the occurrence of the instant guarantee contract occurred when the Ulsan Construction terminated the instant contract, and the remaining members failed to perform their obligations under the instant contract, the Plaintiff is entitled to claim payment of the deposit under the instant guarantee contract upon the performance of the guaranteed obligation to the Defendant. Therefore, the lower court erred by misapprehending the legal doctrine on the occurrence of the guaranteed accident and the assumption of the obligation exempt from liability under the contract and the guarantee contract in which the joint contractor is involved, thereby adversely affecting the conclusion of the judgment by failing to exhaust all necessary deliberation. The allegation contained in the grounds of appeal on this point is with merit.

3. The lower court rejected the Plaintiff’s claim for damages for delay resulting from delay in the payment of deposit (ground of appeal No. 5) on the ground that the Defendant had justifiable grounds for delaying the payment of the deposit under the remainder guarantee agreement except for the instant guarantee contract under each of the instant guarantee contracts during the period, on the grounds that the Defendant continued tendering procedures for guarantee construction through the guaranteed performance company in accordance with an agreement with the Plaintiff.

Examining the reasoning of the lower judgment in light of the record, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

4. Conclusion

The part of the judgment of the court below regarding the claim for the deposit under the guarantee contract No. 1 of this case is reversed without examining the remaining grounds of appeal, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok