[공사대금][집37(3)민,43;공1989.11.1.(859),1460]
Whether the agreement on liquidated damages for delay under the construction contract shall apply to the case where the contract is rescinded during the construction contract (negative)
If the contractor and the contractor fail to complete the construction within the construction period at the time of the construction contract, if the contractor agree to pay compensation for delay the amount calculated by multiplying the contract price by the delayed rate for each number of days of delay, such agreement shall not be likely to discuss compensation for delay if the contractor has completed the construction after the scheduled date of completion of the construction, and the contractor has not completed the construction due to the cancellation of the contract while the construction has been completed.
Articles 398, 664, and 667 of the Civil Act
Attorney Park Tae-ok, Counsel for the defendant-appellant
[Defendant-Appellee] Defendant 1 and 3 others (Attorney Park Jong-ju, Counsel for defendant-appellee)
Seoul High Court Decision 88Na2816, 2817 decided April 22, 198 (Counterclaim)
The appeal is dismissed.
The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).
Defendant Counterclaim Plaintiff’s ground of appeal (including the ground of appeal for addition)
According to the reasoning of the judgment of the court below, the new construction of the building of this case concluded between the plaintiff and the defendant could not be completed within the completion date due to the delay of construction attributable to the plaintiff, and the above contract was rescinded for the non-execution part, and the successful inspection of completed portion by the construction supervisor at the time of the cancellation of the contract was recognized as a fact that the successful inspection of completed portion by the construction supervisor was about 691,490,755, and there is no error of violation of the
In addition, when the plaintiff and the defendant fail to complete the construction work within the deadline for completion, the court below agreed to pay as liquidated damages the amount calculated by multiplying the contract price by the rate for liquidated damages set forth in the contract by the number of delayed days. However, when the contractor completes the construction work after the scheduled date for completion of the construction work, it was determined that the liquidated damages for the number of delayed days was agreed, or that there is no room to claim liquidated damages in the event the contractor fails to complete the construction work due to the cancellation of the contract during the construction work as in this case. Thus, there is no error in the misapprehension of legal principles, such as theory of lawsuit, or in the incomplete hearing, or in the exercise of right
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Young-young (Presiding Justice)