[2] Whether a contractor may refuse to perform the obligation of continuous construction under Article 536(2) of the Civil Act in a case where the contractor fails to pay the contract price for the work already performed at a certain period of time, and it is fair to demand the contractor to perform the obligation of preferential performance under the original contract because the contractor did not pay the contract price without any justifiable reason (affirmative)

[2] There is no reason to interpret that only objective and general circumstances occurred on the creditor side, such as credit unrest or aggravation of financial status, with respect to the ground giving rise to the so-called uneasiness defense under Article 536(2) of the Civil Act. In particular, in a case where a contract to perform construction work over a considerable period of time stipulates that the contractor shall pay the price in the name of the work in advance, such as the performance of the construction work, in a case where the contractor’s unilateral performance should be made in advance, unlike the general contract that requires the contractor to pay the price in advance, there is a premise that the contractor’s unilateral payment of the construction cost as above guarantees the contractor’s smooth performance in the future. Thus, even if the contractor continues to perform the construction work without any justifiable reason after the conclusion of the contract, it cannot be reasonably expected that a considerable portion of the construction cost according to the contents of the contract should be paid as agreed upon, and if demanding the contractor to perform the obligation to pay the pre-performance under the terms of the original contract, it would be contrary to fairness, even if there is no reason to refuse the contractor’s.

Article 536(2) of the Civil Act provides that, even in cases where one of the parties to a bilateral contract is liable to perform the obligation first to the other party, “if there is a substantial reason to make it difficult for the other party to perform the bilateral contract,” the so-called “defensive defense against the non-performance.” Here, “any reason to make it difficult for the other party to perform” refers to a change of circumstances that make it impossible for the debtor to perform the counter-performance due to such reasons as the debtor’s credit failure or aggravation of property status after the formation of the contract, etc., and thereby making the obligor perform the pre-performance obligation in accordance with the original terms and conditions of the contract contravenes the fairness and the principle of good faith. Whether there is such reason should be determined by taking into account the circumstances of both parties (see Supreme Court Decision 90Meu2435, Nov. 23, 190, etc.).

On the other hand, there is no reason to interpret that only objective and general circumstances occurred on the part of the contractor, such as credit unfortunate or aggravation of financial status, are applicable to the reasons giving rise to the above unfortunate defenses. In particular, in a case where the contractor agrees to pay the price for the construction work already performed at a certain period of time in the name of the initial contract for construction work, etc., unlike the general contract where the primary performance should be made in advance, there is a premise that the contractor’s primary performance is to guarantee the contractor’s future performance. Thus, even if the contractor continues to perform the construction work without any justifiable reason after the conclusion of the contract without paying the amount of the construction work in violation of the above agreement, it cannot be reasonably expected that the contractor will receive the amount of the construction work in accordance with the contents of the contract, and it would be contrary to fairness to demanding the contractor to perform the duty of preferential performance under the original contract, even if there is no credit unfortunate, etc. for the contractor, the contractor may refuse the performance of the duty under Article 536(2)36(1)65.

Examining the records in light of the above legal principles, the court below's decision that the defendant's suspension of the construction of this case cannot be deemed to be a cause attributable to the suspension of the construction of this case on its grounds as stated in its holding is acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the right of defense against anxiety, by misapprehending the rules of evidence or failing to exhaust all necessary deliberations, or by misapprehending the duty

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 on the bench.

Justices Kim Yong-deok (Presiding Justice)