2014Da36719 (Consolidated Construction Costs, etc.)

Judgment

A. As to the grounds of appeal on the rate of fixed interest and remuneration therefor

(1) On April 2, 2009, the court below decided that the contract of this case was lawfully rescinded by notifying the co-defendant B Co-Defendant B Co., Ltd. (hereinafter referred to as the "B"), the contractor, of the first instance on April 2, 2009, and that the contract of this case was lawfully rescinded, but the restoration to the original state was significant social and economic losses, and the completed portion is beneficial to the contractor, even if the contractor cancels the contract of this case, the contract was invalidated only for the completed portion, and the contractor may claim reasonable remuneration in consideration of the degree of completion of the building. In other cases, the Co-Defendant E of the first instance trial stated that the Defendant’s new construction work of this case was 70% at the time of the acquisition of ownership of each of the land of this case, and the Defendant also recognized that the new construction work of this case was 60% at the time of cancellation of the contract of this case on December 17, 2008, and that the new construction work of this case was 9% at the time of cancellation of the contract of this case.

(2) The above determination by the court below cannot be accepted.

According to the reasoning of the judgment below and the record, ① Co-Defendant D (hereinafter referred to as the "D") and CO of the original co-defendant of the building of this case contracted the new construction of the building of this case to AC Co., Ltd. (hereinafter referred to as the "AC"), and C discontinued concluded settlement agreement on February 5, 2007 on the premise that D had part of the construction work done by AC up to the point of time. D and E, the actual owner of the building of this case, who was the owner of the building of this case, was the owner of the building of this case, on April 23, 2007, under the premise that D and E transferred the new construction work of this case to E Co., Ltd., Ltd., the owner of this case, who was the owner of the new building of this case, for the new construction of the building of this case, and that D and D were the owner of the new construction of this case under the premise that D and D construction work of this case, which had been assigned to D and D construction work of this case.

In light of the circumstances taken into account in the determination of the advance rate, the lower court appears to have determined that the advance rate of construction for the entire new construction of the instant building was 80%. However, barring any special circumstance, it cannot be readily concluded that B is the amount calculated by multiplying the advance rate recognized by the lower court by the construction cost stipulated in the instant contract, barring any special circumstance, as the said construction was partially executed before the new construction of the instant building was conducted by AC and Pyeongtaek General Construction before the construction of the instant building was conducted.

Therefore, the lower court should have determined the scope of remuneration to be claimed to the Defendant by way of specifying the nature and ratio of the construction work performed by B based on the scope of the construction work, etc. after first clarifying the specific scope of the construction work to be performed by B in the instant contract.

Nevertheless, the lower court determined that the Defendant is obligated to pay the amount equivalent to 80% of the construction cost stipulated in the instant contract to B as remuneration. In so doing, the lower court erred by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

B. As to the grounds of appeal on the offset period

(1) As the contract of this case was cancelled, the court below determined that the Defendant’s defense that B set off the remainder of B after the Defendant deducteds or set off the construction cost, etc. paid to B prior to the cancellation of the contract of this case, and then the Defendant’s claim based on the judgment in the lawsuit seeking nullification of the contract of this case against B is offset against the Defendant’s automatic claim. As the contract of this case was cancelled, the due date of the claim against B against the Defendant is April 2, 2009 when the contract of this case was cancelled, and the damages for delay occurred from the next day, and the due date of the Defendant’s claim based on the judgment in the lawsuit seeking nullification of the contract of this case against B is set on April 28, 2009, and the offset date is set on April 28, 2009. Thus, the court below determined that the principal of the remainder of the contract after the aforementioned deduction or set-off against the Defendant as above against B and the damages for nullification of the principal of this case’s contract of this case was extinguished.

(2) The above measures of the court below cannot be accepted.

Where both obligations are simultaneously performed in a bilateral contract, even if one of the parties’ obligations becomes due, it is not liable for delay of performance even if the other party’s obligation is not performed until the other party’s obligation is performed. If the contractor cannot be deemed to have provided performance or performed for the delivery of the building by the date of closing argument in the fact-finding trial, it cannot be said that the contractor is liable for delay of performance with respect to the obligation to deliver the building and the obligation to pay the construction price in the simultaneous performance relationship (see Supreme Court Decision 2002Da4370, Oct. 25, 2002).

According to the records, there is no evidence to deem that B, the contractor, had offered or performed the construction for the delivery of the building of this case to the Defendant, the contractor, until the contract of this case is rescinded.

Nevertheless, without examining whether B performed, offered, or performed for the delivery of the building of this case, the lower court: (a) deemed B’s obligation to pay remuneration to the Defendant on April 2, 2009 at the date when the contract of this case was rescinded; and (b) determined that damages for delay occurred immediately from April 3, 2009, the following day; and (c) in so doing, the lower court erred by misapprehending the legal doctrine on delay in the bilateral contract and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. We examine ex officio.

A. Where a debtor becomes aware that a lawsuit by subrogation right of a creditor has been filed, the final and conclusive judgment shall also be binding on the debtor, and in such a case, multiple creditors who jointly exercise the debtor's right based on each obligee's subrogation right in the above case are in a similar indispensable co-litigation relationship. In addition, in the first instance court, where multiple creditors' claims in a similar indispensable co-litigation are all dismissed, and in case where a part of them have been appealed, Article 67 (1) of the Civil Procedure Act provides that in an indispensable co-litigation, only one of the co-litigants has an effect for the benefit of all of them, and thus, the lawsuit by a part of the co-litigants shall also be effective against all of the co-litigants, and the case shall be interrupted by the final and conclusive judgment of the appellate court (see Supreme Court Decision 91Da23486, Dec. 27, 191).

B. According to the records, ten persons, including the plaintiff A (Appointed Party) of the first instance court (hereinafter referred to as "the plaintiff of the first instance court"), filed a lawsuit against the defendant seeking the payment of the construction cost, etc., and the revocation of fraudulent act against the defendant, but the plaintiff of the first instance court was selected as the appointed party. The plaintiff of the first instance court changed the claim against the defendant by subrogation of the plaintiff of the first instance court and the first instance court (referred to the appointed party of the first instance except the plaintiff of the first instance court; hereinafter the same shall apply) to add the claim against the plaintiff of the first instance court and the appointed party of the first instance (referred to the appointed party of the first instance) for the payment of the construction cost. The court of the first instance accepted the claim against the plaintiff of the first instance court and the appointed party of the first instance, among the plaintiff of the first instance and the first instance court, the plaintiff of the first instance court and the appointed party of the first instance filed an appeal against the defendant. The plaintiff of the first instance court (the appointed party of the second instance) and the plaintiff of the second instance.

In light of the above legal principles, the plaintiff of the first instance court also filed the lawsuit of this case against B, who is the debtor, and the plaintiff of the first instance court and the designated parties of the first instance court are in a similar indispensable co-litigation relationship by jointly exercising the debtor's right under each obligee's subrogation right. Therefore, even if the plaintiff of the first instance court, who dismissed the plaintiff's claim against the defendant of the first instance court, filed an appeal against the plaintiff of the first instance court, only the designated parties I, J, K, and M, the above lawsuit of this case constitutes a benefit of all co-litigants. Thus, the validity of the part of the claim for monetary payment subrogated to B is not effective even to those who did not file an appeal. Thus, the confirmation of the essential co-litigants is prevented and it is transferred to the appellate court.

Therefore, the court below rendered a single judgment on the claim for monetary payment subrogated B to the plaintiff of the first instance and the designated parties of the first instance who are in an indispensable co-litigation, notwithstanding the fact that it is necessary to render a single judgment on the claim for monetary payment subrogated to B for the consolidated determination, the court below rendered a judgment only to the above parties by proceeding only with the plaintiff (appointed parties), the designated parties I, J, K, and M. In so doing, the court below erred by misapprehending the legal principles on Article 67(1) of the Civil Procedure Act, which provides for special provisions on indispensable co-litigation, which

3. Conclusion

Therefore, among the part of the judgment below against the defendant, the part of the claim for monetary payment subrogated to B, is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok