[전부금][공2000.1.15.(98),148]
In case where a contractor is required to return advance payment during the proceeding due to the cancellation, termination, etc. of a construction contract, whether the unpaid amount is naturally appropriated for advance payment without a separate declaration of offset (affirmative)
The so-called advance payment under a contract for construction work is paid in relation to the whole construction work, not to pay the contractor the specific amount of the construction work in advance in order to ensure the smooth progress of the construction work, but to pay it in relation to the whole construction work, in light of the fact that the contractor has the nature of the pre-paid construction work, if there occurs any cause for the contractor to return the advance payment during the construction work due to the cancellation or termination of the contract after the advance payment was made, or breach of the terms and conditions of advance payment, the unpaid amount of the construction work shall be naturally appropriated for the advance payment and the contractor bears the obligation to pay only the amount of the pre-paid construction work if there is the remainder of the construction work.
Article 664 of the Civil Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)
Jeju Comprehensive Construction Co., Ltd. (Law Firm continental, Attorneys Ba-hee et al., Counsel for the plaintiff-appellant)
Gangnam-gu Seoul Metropolitan Government (Law Firm Tae general Law Office, Attorneys Gag-soo et al., Counsel for the defendant-appellant)
Seoul High Court Decision 98Na66194 delivered on August 24, 1999
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The so-called advance payment under a contract for construction work is paid in relation to the whole construction work, not to pay the contractor the specific amount of the construction work in advance in order to ensure the smooth progress of the construction work, but to pay it in relation to the whole construction work, in light of the fact that the contractor has the nature of the pre-paid construction work, if there occurs any cause for the contractor to return the advance payment during the construction work, such as cancellation or termination of the contract after the advance payment was made, or violation of the terms and conditions for advance payment, barring any special circumstance, the unpaid amount of the construction work shall be naturally appropriated for the advance payment and the contractor bears the obligation to pay the remainder of the construction work (see Supreme Court Decision 97Da5060, Dec. 12, 1997).
In the same purport, the court below held that on August 2, 1996, the Defendant entered into a contract for construction work with the beer Industry Development Co., Ltd. (hereinafter referred to as the "Maerer Industries") to execute the instant construction work at KRW 847,796,722, and paid KRW 418,00,000 as advance payment to the beer Industry. While performing the beer Industry, upon the suspension of current account transaction transaction as of March 26, 1997, there was a reason to return advance payment to the Defendant under the contract agreement by suspending construction work upon the suspension of execution of current account transaction transaction as of March 26, 1997, and that the unpaid amount of construction work payment was KRW 123,959,00,000, and that it did not err in the misapprehension of legal principles as to claims for provisional seizure or provisional seizure before the termination of provisional seizure order as of April 3, 199 thereafter.
Therefore, the appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Cho Chang-chul (Presiding Justice)