2. All remaining claims of the Plaintiff are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

가. 원고는 2006. 6.경(실제 계약서 작성일은 2006. 7. 5.이다) 피고와 사이에, 피고가 주식회사 영조주택(이하 ‘영조주택’이라 한다)으로부터 도급받은 부산 강서구 명지동 소재 ‘퀸덤아파트 신축공사’의 ‘A블록(301동 ~ 317동) 기초공사’ 중 ‘SHEET 파일 및 PHC 파일 공사’(이하 ‘이 사건 공사’라 한다)에 관하여 공사대금 48억 75,989,000원(부가가치세 포함), 공사기간 2006. 7. 5. ~ 2007. 4. 17.로 하는 내용의 하도급계약(이하 ‘이 사건 원계약’이라 한다)을 체결하였는데, 당시 계약서에 첨부된 내역서(갑 1호증의 4)에는 위 공사 중 PHC 파일공사와 관련하여 ‘4,087공을 DRA공법(Double Rod Auger 공법, 지반 천공공법의 하나로서, 하나의 천공기에 2개의 오거〈Auger〉를 장착한 후, 내측 오거에는 스크류를 장착하여 구멍을 만들게 하고, 외측 오거에는 케이싱〈Cashing〉을 장착하여 만들어진 구멍 주위의 토사가 함몰되는 것을 방지토록 하는 공법)으로서 7m를 천공한 후 보조항타 및 파일항타를 하는 것’으로 기재되어 있고, ‘건설공사하도급계약서(본문)’(갑 1호증의 2)와 ‘특수조건’(갑 1호증의 3)에는 아래와 같은 규정이 포함되어 있다.

i. Agreement on the Construction Works (main sentence)

Article 13 (Unconforming Works)

(1) When the part of the construction executed by the plaintiff does not conform to the design documents, the defendant may request correction thereof, and the plaintiff shall comply therewith without delay. In such cases, the plaintiff shall not request an increase in the contract price or an extension of the air.

(2) In cases falling under paragraph (1), when the inappropriate construction is caused by a request or construction by the defendant or by any other reason not attributable to the plaintiff, the plaintiff shall not be liable for such inappropriate construction.

Article 14 (Change and Suspension of Construction Works)

(1) When the defendant deems it necessary or at the request of the project owner changes the details of construction or temporarily suspends all or part of additional construction works, he/she shall deliver a written contract for change and other documents to the plaintiff.

(3) General management expenses and profits for the increased or decreased portion of contract amount shall be determined at the time of conclusion of contract.

④ Under the direction of the Defendant, the Defendant shall pay the Plaintiff increased the construction volume additionally executed by the Plaintiff, even if the owner did not receive any increase.

Terms and Conditions on the Special Terms and Conditions (hereinafter “the Special Terms and Conditions in this case”).

(a) Common matters:

11. Modification of designs and adjustment of contract amount;

1) Quantity shall be deemed not to have increased or decreased except for a change in the design, and shall be adjusted and changed in accordance with the volume of the original contract.

2) Design changes should, in principle, be subject to increase or decrease in the contractual unit cost. In this context, an increase in indirect cost due to extension of the air is not recognized.

4) Since the contractual unit cost is an estimate that takes into account the cost of materials and the rate of increase in personnel expenses until completion of construction, there is no unit price change (unit price) until completion of construction works.

5) The quantities are recognized only as contract quantities and the increase is not recognized as construction quantities and are deemed to be included in the unit price of a term contract.

6) Where the direction of work instruction, change of public law, change of design, etc. was verbally delivered to the Plaintiff, the Plaintiff shall make it in writing and obtain approval from us along with related data, and the content of the unwritten construction shall not be valid.

(b) The details of special circumstances for the relevant type of work;

1) It does not require the Defendant to cover construction costs other than the amounts specified in the contract terms with respect to the port of call.

3) The costs of the material damaged during the course of transport and management of files and the port shall be borne by the Plaintiff.

나. 그런데 위 신축공사 부지는 바다를 매립하여 택지로 조성한 곳으로서 그 아래 지반이 모래와 뻘로 구성되어 있는 바람에 당초 약정한 PHC 파일공사 방법으로는 위 신축공사를 위한 충분한 지내력(지내력)을 확보하지 못하는 것으로 판단되어, 원고와 피고는 2006. 6. 1.부터 2006. 8. 6.까지 PHC 파일공사와 관련한 설계변경을 위한 구조검토용 데이터를 얻기 위한 시험항타(이하 ‘이 사건 테스트 항타’라 한다)를 거친 후, PHC 파일공사 방법을 ‘퀸덤아파트 314동 부지에 대해서는 45m 깊이로 250공을 설치하되, 먼저 DRA 공법으로 14m를 천공한 후 보조항타 및 파일항타를 하고(이하 위 방법에 의한 공사를 ’45m 파일공사‘라 한다), 나머지 부지에 대해서는 55m 깊이로 2,982공을 설치하되, 먼저 DRA 공법으로 45m 천공 후 파일항타를 하는 방법(이하 위 방법에 의한 공사를 ’55m 파일공사‘라 한다)’으로 변경하기로 한 다음, 2006. 8.경부터 위 변경된 방법에 따라 공사를 시공하였고, 이후 설계변경(이하 ‘이 사건 설계변경’이라 한다)을 거친 후 2006. 12. 20.경 위 변경된 공사방법을 반영하여 이 사건 공사대금을 111억 95,358,000원으로 증액하는 내용의 변경계약(이하 ‘제1차 변경계약’이라 한다)을 체결하였다.

C. Since then, from March 16, 2007, the Plaintiff completed most of the instant construction works (except for SHE file launch works) by performing 2,760 works by means of file works with the Defendant for 55 meters, according to the Defendant’s orders following additional design changes. The agreement between the Defendant and the Defendant on the settlement of accounts following the design changes was reached. As the remainder of the civil construction works implemented by the Defendant delayed, it was impossible to perform SHEET file works (the temporary wall that supports both earth walls from leaving into the construction site), and on April 16, 2007, the construction period between the Defendant and the Defendant was extended to July 5, 2006 to November 30, 2007 (hereinafter collectively referred to as “the instant construction contract and the instant two contracts”).

D. Since February 16, 2008, the Plaintiff completed the draft of SHE file with the Defendant on February 16, 2008, but the Plaintiff was not able to complete the settlement of accounts following the final design modification, and the Defendant’s payment to the Plaintiff is KRW 10 billion in total, KRW 87,400,000.

(In fact that there is no dispute, Gap's evidence 1-1 to 4, Gap's evidence 6, Gap's evidence 11 through 14, Gap's evidence 26-1 through 19, Gap's evidence 29, and the purport of the whole arguments and arguments.

2. Determination on the claim for the remainder of the construction work

A. Key issue

The Plaintiff asserts that the construction cost of this case is KRW 11.65,174,00 (including value-added tax) as stated in the corresponding column of “Plaintiff’s claim settlement statement” as stated in attached Form 1, the Defendant is obligated to pay the Plaintiff the remainder of the construction cost of KRW 97,774,400 (=65,174,000 - 10 billion - 87,400,000 - 10.000 87,400,000) and the delayed payment damages. Accordingly, the Defendant again claimed that the Plaintiff should pay the difference of the construction cost of KRW 40,000 to the Plaintiff with 55m file construction work up to KRW 45m as stated in the corresponding column of “Plaintiff’s claim settlement statement” (including value-added tax) and that the difference of the construction cost of KRW 1,000,000 should not be applied to 0,000,0000,000 for the instant construction cost of KRW 10.0.5m.

First, after determining the above three issues, based on this, the construction cost according to the change of the design of the instant construction project will be calculated.

(b) Costs incurred in performing construction works for the Agency;

(1) In light of the above basic facts, the DRA construction method is a construction method that allows the interior side to install a hole by attaching a screen, and the outer side to prevent the contamination of a hole made by the scrap by installing a rink. The characteristic of the DR construction is to prevent the collapse of a factory wall by means of the cases installed in the outer side of the road. Thus, if the collapse prevention of a factory wall by the rink is within the physically possible range, it cannot be deemed that the rink has to be applied to both the outer side. Accordingly, the defendant's assertion is without merit under the premise that the DRA construction method cannot be deemed to have been done in the outer side of the road.

(2) In addition, if the scheduled process of a certain construction project has been completed and no particular defect occurred, it shall be presumed that the construction project was lawfully conducted as designed. However, if the issue is whether the construction project not related to the main structure has been omitted, it shall be deemed that the claimant bears the burden of proving the non-execution portion. The fact that the Plaintiff completed the construction of this case including the PHC file work around March 2007 is as stated in the above basic facts, and there is no evidence to deem any defect in the part implemented by the Plaintiff, while there is no evidence to support that there is any defect in the part implemented by the Plaintiff, on the other hand, the video of evidence Nos. 4-1 to No. 6-3, Nos. 3 and 8-1 to No. 46-3, No. 9, and the video of No. 3 and No. 8 are insufficient to readily conclude that the Plaintiff performed only 41m of the PHC file work, and there is no other evidence to support this part of the Defendant’s assertion.

(3) However, the plaintiff asserted that the total amount of 2,820 m 2,820 m 45m m m 126,90m m m x 2,820m m m m m 45m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m

(c) T4 equipment cost;

원고가 이 사건 공사를 수행하면서 T4 장비를 사용하지 아니한 사실은 당사자 사이에 다툼이 없으나, 한편 다툼 없는 사실, 갑 2호증의 2, 갑 37호증의 1 내지 59의 각 기재, 갑 30호증의 1 내지 11의 각 영상, 감정인 소외 1의 감정결과(이하 ‘이 사건 감정결과’라 한다) 및 변론 전체의 취지를 종합하면, 이 사건 공사 부지는 그 표면에서 4m 가량 사석이 매립되어 있어 이를 제거한 후에야 DRA 공법에 의한 천공 작업에 착수할 수 있었던 사실, 이에 원고와 피고는 계약 당시 위 사석 제거를 T4 장비로 하는 것을 예정하고, T4 장비의 직접공사비를 1억 93,920,000원으로 책정한 사실, 그런데 공사도중 사석 아래의 지반이 뻘과 모래로 구성되어 있어 위 사석을 동시에 제거하여 버리면 지반 불안정으로 인하여 중장비 가동이 곤란해지는 문제가 발생한 사실, 그 결과 PHC 파일공사를 하는 구간마다 순차로 사석을 제거할 필요가 있었고, 위 방식으로 사석 제거를 하는 경우 T4 장비는 비효율적이어서 굴삭기로 대체시공하게 된 사실, 원고가 굴삭기로 위 사석 제거 작업을 하는 동안 피고 또는 발주자인 영조주택으로부터 아무런 이의 제기가 없었던 사실, 원고가 굴삭기를 사용하여 사석을 제거하는 경우의 공사비가 3억 5,206,000원 상당으로 감정된 사실을 인정할 수 있는바, 위 인정사실에 의하면, 비록 원고는 계약 당시 예정된 T4 장비를 사용하지 않았으나, 굴삭기를 이용하여 사석 제거 작업을 마쳤고, 위 굴삭기에 의한 공사비용이 3억 5,206,000원 상당으로서 당초 예정된 T4 장비에 의한 공사비용 1억 93,920,000원을 초과하고 있으므로, 피고는 원고에게 사석 제거 비용 명목으로 위 각 금액 범위 내로서 원고가 구하는 1억 87,140,000원(= 17,940,000원 + 1억 69,200,000원)과 그 지연손해금을 지급할 의무가 있다.

As to this, the defendant asserts that the plaintiff could not accept the claim for the construction cost of this part because he did not obtain the approval in writing from the defendant while changing the removal of tin from T4 equipment. Thus, as seen in the above basic facts, "if the plaintiff's order for work instruction, change of construction method, change of design, etc. was delivered to the plaintiff orally, the plaintiff must make it in writing and obtain the approval of the plaintiff, and the contents of the unwritten construction shall not be valid for the unwritten construction work." However, the above provision is just to the purport that the plaintiff cannot claim for the "additional construction cost" if the plaintiff performed construction work due to change of construction method or change of design without the defendant's written approval, and even if the intended construction work was completed and the objective was achieved, it cannot be concluded that the payment of the original construction cost can not be refused merely on the ground that it did not follow the scheduled construction method. Thus, the defendant's above assertion is without merit.

(d) Service stress costs.

According to the statement of Gap evidence 2-2 (construction cost statement), it is insufficient to conclude that the above facts alone have agreed to settle the quantity of work not following the design change as the actual work quantity, and 2,000 won per unit price, 164,010 meters per unit price, 55 meters per unit price, and 164,010 meters per unit price, and 5,500 won, respectively, are recognized as having been determined. Meanwhile, as seen in the above basic facts, in light of the fact that "the quantity is deemed not to have increased or decreased except for the design change, and it shall be adjusted and modified in accordance with the original contract quantity." In light of the above facts, it is insufficient to conclude that the above facts alone have agreed to do so for the actual work quantity to the actual work quantity not following the design change, and there is no other evidence to acknowledge this, the defendant's above assertion is without merit.

(e) Results of settlement;

In full view of the facts acknowledged earlier, without dispute, Gap evidence 2-2, Gap evidence 4, and 21 evidence, and the purport of the whole arguments, the construction details and construction costs performed by the plaintiff following the final design modification of the construction of this case may be acknowledged as identical to that stated in the relevant column in the construction details and the statement for settlement of accounts in attached Form 2 (the plaintiff asserts that "SHE file rent" is not "378,100,000 won," but "756,200,000 won" as at the time of the first modification contract, but it appears that the above increased portion of 378,100,000 won overlaps with part of the SHE file that the plaintiff claims for additional construction costs, and thus excluded from the above statement for settlement).

Therefore, since the construction cost of the instant construction project is settled at KRW 10.476,497,00, the Defendant is obligated to pay to the Plaintiff the remaining payment of KRW 389,097,00 (i.e., KRW 10.46,497,00 (i.e., KRW 10., KRW 76,497,00) and the delay damages.

3. Determination on the claim for additional construction costs

(a) Expenses incurred in destroying a PHC file;

Comprehensively taking account of the statements in Gap 10, 11, 18, 22, and 38-1, and Gap evidence 2 through 65-2 of the evidence Nos. 38-2 and 65, the appraisal results of this case, and the purport of the whole pleadings, the plaintiff filed a PHC file in the course of performing the PE file work and conducted additional work because the total of 65 PHC files were destroyed and damaged. The construction cost for the above additional work was 181,170,000, the construction cost for the above additional work was 181,170,000,000, the damage of the PHC file was caused by the file material defect (PHC file was provided by the defendant) and the non-compliant order of the defendant or the Young-gu house. In light of the fact that the defendant asserted that the PHC file was destroyed and damaged to the Young-gu house on December 11, 2007 and claimed damages for delay from the plaintiff.

(b) Expenses for the test equipment;

(1) The plaintiff's assertion

The Defendant is obligated to pay the Plaintiff the above KRW 450,500,000 and damages for delay, since the cost of using equipment and waiting equipment due to the instant test test results in a total of KRW 453,500,000,000.

(2) Determination

After the conclusion of the original contract of this case, the facts that the plaintiff and the defendant resisted the test of this case from June 1, 2006 to August 6, 2006 due to the internal forces of the construction site of this case after the conclusion of the original contract of this case are as shown in the above basic facts. According to the appraisal of this case, the plaintiff's total expenses for the use of equipment and the waiting of equipment are 166,628,000,000, but it is found that the plaintiff's total expenses for the use of equipment and the waiting of equipment were 66,7,16,18,23,24, and evidence No. 39-1 through evidence No. 41-30, the above expenses are more than 166,628,000,000 won, and there is no other evidence to acknowledge otherwise, and the defendant has the duty to pay damages for delay to the plaintiff at its own expense.

In regard to this, the defendant argued that the construction cost related to the navigationta at the time of the contract of this case did not require the defendant except for the amount specified in the contract, so that the plaintiff cannot comply with the above claim, so the special condition of this case b. 2-1 of this case stated that "the defendant does not require the defendant with respect to the construction cost other than the amount specified in the contract in relation to the navigationta" as stated in the above basic facts. However, the navigationta stipulated in the above provision is interpreted as a pilot work before the plaintiff initiates the navigationta in accordance with the design drawing. On the other hand, the plaintiff's assertion that "the construction cost for the navigationta at the time of the first alteration contract of this case is stated as "the separate settlement condition for the construction cost for the design modification of 3........................., the defendant also claimed against the Young Housing on December 11, 2007 as "the data file charge", and the defendant's assertion is without merit.

(c) Rent for a SHET file;

(1) The plaintiff's assertion

Although the period of use of the SHE file established by the Plaintiff under the instant contract expired on April 17, 2007, which was the initial completion date of the instant construction contract, the period of use was extended on February 16, 2008 at the Defendant’s request due to the delay of the remainder of the civil works by the Defendant. As such, the Defendant is obliged to pay the Plaintiff the amount of KRW 57,683,00,00, which reflects the price increase portion, and the delay damages.

(2) Determination

(A) Comprehensively taking into account the aforementioned basic facts and evidence Nos. 2-2 and 28-1 of the evidence No. 28, the plaintiff and the defendant set the rent of 190,000 won per ton for eight months with respect to the SHEET file rent of 1,990 tons at the time of the first alteration of the contract, and the plaintiff completed the instant construction work following additional design modification until March 2007, but the remaining public works were delayed, making it impossible to carry out the SHET file delivery work for the plaintiff on April 16, 2007, which was the day before the expiration of the construction period of 100,000,000 won to be extended from July 5, 2006 to November 30, 2007, the defendant concluded a contract with the defendant for the extension of the construction period of 190,000 won to be paid to the plaintiff on July 5, 2006 to 208.

(B) The Plaintiff asserts that the HE file rent after the second modification contract should be calculated as KRW 243,00 per ton in consideration of price fluctuation, but the instant special condition A. 1-4 of the instant case provides that “The unit price is estimated in consideration of material cost and labor cost increase rate until completion, so there is no unit price fluctuation (unit price increase) until completion of construction, since the unit price is estimated in consideration of material cost and labor cost increase rate until completion of construction.” Since there is no evidence to prove that construction completion has already been completed at the time of the second modification contract, the Plaintiff’s above assertion is without merit.

(C) The Defendant asserts that the Plaintiff renounced the claim for additional rent at the time of the second modified contract. As seen earlier, the second modified contract was concluded to extend the Plaintiff’s period of use of the file due to the delay in the remaining civil works by the Defendant, and the statement in Gap evidence No. 35, it cannot be readily concluded that the Plaintiff renounced the additional rent at the time of the second modified contract, and there is no other evidence to acknowledge it. Thus, the Defendant’s assertion is without merit.

4. Determination on the claim for interest in arrears

A. The plaintiff's assertion

Pursuant to Article 13(2) of the Fair Transactions in Subcontracting Act (hereinafter “subcontract Act”), the Defendant is obligated to pay to the Plaintiff interest of KRW 97,774,00,00, calculated at the rate of 25% per annum from June 17, 2007 to March 31, 2008, which is the period exceeding 60 days counting from April 17, 2007, which is the delivery date of the object, pursuant to Article 13(2) of the Subcontract Act, to the Plaintiff.

B. Determination

Article 13 (2) of the Subcontract Act provides that "where the date of payment of subcontract consideration is not determined, the receipt date of the subject matter, etc. (in the case of construction, the date of acquisition in the case of construction, the date of service entrustment, and the date of issuance of tax invoices if the principal contractor and the subcontractor have been determined at least once a month due to frequent supply, etc., referring to the date fixed; hereinafter the same shall apply) shall be deemed the date of payment of subcontract consideration." Article 13 (8) of the Subcontract Act provides that "where the principal contractor pays the subcontract consideration 60 days after the date of receipt of the object, etc. of subcontract consideration, the interest shall be paid according to the interest rate determined and publicly announced by the Fair Trade Commission in consideration of economic conditions, such as the overdue interest rate applied by financial institutions under the Banking Act within 40/100 per annum." The interest rate publicly announced by the Fair

However, the Plaintiff’s completion of the instant construction and the Plaintiff’s claim for the remainder of construction are as seen earlier. As such, the Defendant is obligated to pay to the Plaintiff the above KRW 389,097,000,00 for the interest interest calculated at the rate of 25% per annum from April 17, 2007 to March 31, 2008, as the Plaintiff seeks, for the above KRW 389,097,000, the Defendant is obligated to pay the Plaintiff the interest for delay calculated at the rate of 25% per annum from April 17, 2007 to March 31, 2008 (i.e., 389,097,000 x 289,365 x 289 days x 265 x 25 x 25%, hereinafter “the interest for delay”). As the Defendant’s claim on the interest for delay is groundless.

The plaintiff asserts that he claim damages for delay calculated at the rate of 20% per annum as stipulated by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the day after the duplicate of the complaint of this case to the day of full payment. However, the statutory interest rate under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is applied to the claim with an agreement on interest or damages for delay (see Supreme Court Decision 2009Da12399, Jun. 11, 2009). Since there is no evidence to support that there was an agreement on interest or damages for delay on the above interest under the construction contract of this case

5. Conclusion

Therefore, the defendant is obliged to pay to the plaintiff 1.29,753,448 billion won in total of the construction cost, additional construction cost, and interest for arrears of this case (=389,000 won in total + cost of damage of PHC file 181,170,000 won in + cost of KRW 166,628,000 in test equipment + KRW 436,049,000 in SHET file file cost + KRW 76,809,448 won in interest for this case + KRW 76,904,000 in total and KRW 389,000 in total,00 in total, + KRW 181,70,000 in total + KRW 170,000 in cost of damage of PHC file + KRW 180,000 in total, KRW 46,000 in total, KRW 20868,000 in the following day of the request for the correction of this case.

[Attachment]

Judges Noh Man-man (Presiding Justice)