가. 원고는 관광, 숙박업 및 기타 종합레저 산업 등을 목적으로 하는 주식회사로서 경주시 외동읍 괘릉리 산 62-4 소재 경주 리챔블 콘도미니엄 신축공사(이하 ‘이 사건 콘도 신축공사’라 한다)의 발주자이고, 피고는 건축공사업 등을 영위하는 회사로서 이 사건 콘도 신축공사의 수급인이다.

On December 18, 2009, the Plaintiff entered into a construction contract with the Defendant and the construction cost of KRW 7.8 billion, and the construction period from February 17, 2010 to July 30, 2010 (hereinafter “instant construction contract”). The Plaintiff issued to the Defendant each membership agreement in attached Form 2 (hereinafter “instant membership agreement”) under the pretext of advance payment for the construction cost.

However, the Defendant did not proceed with construction, and on April 29, 201, the Plaintiff notified the Defendant that the instant construction contract was terminated.

B. According to the letter of waiver of construction works submitted by the Defendant to the Plaintiff pursuant to Article 6(4) of the Special Terms and Conditions of the instant construction contract, where the Defendant is unable to perform the instant container construction works any longer due to default, bankruptcy, etc., the Defendant shall transfer to the Plaintiff all rights related to the instant construction contract and all rights related to the seller and third parties regarding the sale, including all rights related to the instant construction contract and the right to purchase, the right to receive the sale proceeds, and all other rights related to the special terms and conditions thereof.

As seen earlier, the instant construction contract was terminated due to the Defendant’s nonperformance of obligation, and thus, the Defendant’s right to the instant container construction work belongs to the Plaintiff according to the foregoing construction waiver note.

C. Therefore, the plaintiff is not liable to pay the construction price to the defendant, and the defendant is not liable to the plaintiff.