Whether the construction cost payable to the Plaintiff remains

Even if one of the joint contractors withdraws, the settlement of advance payment should be made separately by each recipient, so it cannot be excluded from the construction price of the subcontractor who remains in advance.

Article 665 of the Civil Act (Time to Make Remuneration)

Changwon District Court 2015dan87687

AA General Construction

Korea

February 2, 2017

February 16, 2017

1. The Defendant shall pay to the Plaintiff 179,416,500 won with 6% interest per annum from July 19, 2014 to December 15, 2015, and 15% interest per annum from the following day to the date of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

(a) Conclusion of the first construction contract and completion of construction works;

(1) The Plaintiff is a company that is established for the purpose of soil construction business, steel-line container construction business, etc.

(2) On November 19, 2012, the Plaintiff formed a joint supply and demand organization with BB General Construction Co., Ltd. (hereinafter referred to as “B Comprehensive Construction”), and entered into the first construction contract with the Seoul Regional Co., Ltd. (hereinafter referred to as “instant construction contract”).

(c) Construction name: New construction of a DNA tax office building;

(a) The name of the procuring entity (place of order): DNA tax administration;

A representative contractor: The plaintiff;

. Date of contract: November 19, 2012

(a) The first construction amount: 3,280,830,000 won (the amount increased to 3,305,491,000 won according to a subsequent design change); and

(b) Additional amount of total construction: KRW 9,850,182,990 (this has been increased to KRW 9,874,843,990 thereafter);

Date of commencement: November 26, 2012

. Date of the first completion: October 31, 2013

(2) The date of completion: July 18, 2014

(c) Policyholders' information: Representative (joint): 50 percent of the equity ratio of the plaintiff or company:

Contract (joint) : BB integrated construction, equity ratio (total equity ratio): 50 percent

(3) The Plaintiff and BB Comprehensive Construction commenced construction on November 26, 2012 and completed the part of the first construction contract among the instant construction works on October 31, 2013, and the Defendant paid the Plaintiff and BB Comprehensive Construction KRW 1,652,745,50, respectively, the construction cost of KRW 3,305,491,00 under the first construction contract.

B. Conclusion of the second construction contract and advance payment by the Defendant

(1) On November 1, 2013, the Plaintiff and BB Comprehensive Construction submitted to the Defendant a guarantee term of KRW 600 million in advance from November 1, 2013 to July 30, 2014.

(2) On November 26, 2013, the Plaintiff and BB Comprehensive Construction concluded the second construction contract on the instant construction project with the Defendant (hereinafter “the instant second construction contract”). The main contents are as follows. On December 31, 2013, the Defendant received advance payment of KRW 600 million, respectively.

. Date of contract: November 26, 2013

. The secondary construction cost: KRW 4,059,11,890 (the amount increased to KRW 9,216,345,000 according to four changes in design from April 17, 2014 to July 18, 2014).

. Additional amount for total construction: KRW 9,874,182,90 (the amount increased to KRW 12,521,836,000 according to four changes made from April 17, 2014 to July 18, 2014);

Date of commencement: November 1, 2013

2. Date of the second completion: May 31, 2014 (this was changed on July 18, 2014)

(2) The date of completion: July 18, 2014

(c) Policyholders' information: Representative (joint): 50 percent of the equity ratio of the plaintiff or company:

Contract (joint) : BB integrated construction, equity ratio (total equity ratio): 50 percent

C. Payment of the first and second progress payments by the Defendant

(1) The Defendant, through the gender examination on January 22, 2014, determined the first progress payment amount of up to December 31, 2013 under the second construction contract as KRW 642,40,00,000, and paid each advance payment of KRW 321,20,000 (642,40,000 x 1/2) to the Plaintiff and the BB General Construction according to their respective equity ratio, and paid each advance payment of KRW 90,128,40,00, after deducting each payment of KRW 321,20,000 (642,40,000 x 1/2) and labor cost of KRW 136,115,102.

(2) The Defendant, through the gender examination on April 24, 2014, determined the second progress payment amount by March 31, 2014 under the second construction contract as KRW 1,63,849,00, and paid each advance payment of KRW 831,924,50 ( KRW 642,400,000 x 1/2) to the Plaintiff and BB integrated construction according to their respective equity ratio, and paid each advance payment of KRW 245,943,00 and labor cost of KRW 221,958,275 after deducting each advance payment of KRW 364,023,225.

(d) The renunciation of construction works and the change of equity ratio in BB comprehensive construction;

(1) From April 7, 2014 due to business deterioration, BB comprehensive construction agreed with the Plaintiff on May 16, 2014 that “The Plaintiff shall complete the construction based on the completed date of the instant construction on March 31, 2014, and BB comprehensive construction will transfer the share ratio of the construction portion from April 1, 2014 to the completion date to the Plaintiff, and the Plaintiff and BB comprehensive construction will settle the accounts with respect to advance payment.”

(2) On May 19, 2014, according to the above agreement between BB General Construction, the Plaintiff requested a change in the share ratio to the Seoul RegionalCC under the Defendant’s control. On May 22, 2014, the Seoul RegionalCC changed the secondary contract share ratio of the instant construction contract to Plaintiff 71.592% and BB General Construction 28.408%, respectively, and accordingly, notified the Plaintiff Company and BB General Construction to change each construction contract.

E. The completion of remaining works by the Plaintiff

(1) On May 30, 2014, the Defendant determined the third progress payment by May 30, 2014 under the second construction contract as KRW 1,869,219,00, and paid KRW 1,615,245,100 remaining after deducting KRW 123,847,90 from the amount of the above progress payment to the Plaintiff.

(2) On June 24, 2014, the Defendant determined the fourth progress payment amount by June 24, 2014 under the second construction contract as KRW 3,241,375,00, and paid the remainder of KRW 3,012,60,00 after deducting advance payment of KRW 128,974,50, labor cost, KRW 99,797,500, and KRW 3,012,03,00,000, when paying the above progress payment to the Plaintiff.

(3) On July 18, 2014, the Plaintiff completed the second construction contract under the second construction contract. On July 29, 2014, the Defendant inspected the completed period on July 29, 2014, and around December 2014, the Plaintiff paid the Plaintiff KRW 1,46,773,000 in total, which deducted the amount of the following items from the amount of the fifth progress payment (construction payment) under the second construction contract:

(1) 340,399,500 won, less than the amount of 600,000 won paid in advance for the comprehensive construction BB, less than the amount of 94,956,50 won (the amount of 94,956,500 won for the first installment + the amount of 245,943,00 won for the second installment) remaining advance payment 259,10,500 won.

(2) Labor costs of 73,628,500 won

[Ground of Recognition] Unsatisfy, Gap evidence 1 through 9, 13 through 16, Eul evidence 1 through 6, 9 through 16

21, 24, 27, and 28 Evidence (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleadings.

2. Judgment on the main defense of this case

A. The defendant's main defense

The Plaintiff is seeking payment of the balance of the construction cost on the ground that the remaining construction works were completed after changing the ratio of shares of joint supply and demand upon withdrawal from BB comprehensive construction works. However, the Plaintiff made a request for a change of the ratio of shares due to the withdrawal of joint supply and demand companies BB comprehensive construction works, and thus, the instant lawsuit asserts that the instant lawsuit was filed in violation of the non-joint supply and demand agreement

B. Determination

According to the evidence No. 4, on May 16, 2014, the Plaintiff and BB General Construction filed an application with the Defendant for a change in the share ratio following the withdrawal of BB General Construction. The Plaintiff and BB General Construction submitted a written request for a change in the share ratio (Evidence No. 4-2) with the purport that “to facilitate the remaining construction and to promise not to raise any objection in relation to this case,” and a written request for a change in the share ratio (Evidence No. 4-5) with the purport that “to ensure that the remaining construction will be smoothly promoted, and will not raise any objection in the future.”

However, it is only interpreted that the content of the above written request for change and the written statement submitted by the Plaintiff to the Defendant does not raise any objection to the Defendant in the future, and it is difficult to view that it gives up all judicial remedies regarding legal relations related to the construction contract of this case. There is no evidence to acknowledge the above assertion by the Defendant, and the above assertion cannot be accepted.

3. The party's assertion and judgment

A. The parties' assertion

(1) Plaintiff

Upon completion of the instant construction project, the Defendant is obligated to pay the remainder of the construction cost under the second construction contract. Nevertheless, the Defendant was unable to recover KRW 179,416,500, which is a joint contractor for BB construction, from the balance of the construction cost, and the remainder of the construction cost is not paid. Accordingly, the Defendant is obligated to pay the remainder of the construction cost to the Plaintiff, as well as the delay payment thereof.

(2) Defendant

The base price for the second period of construction from April 1, 2014 to May 22, 2014, which is the date following the second period of construction (as of March 31, 2014), is KRW 809,94,900, which is the date of withdrawal from BB comprehensive construction from May 22, 2014. Of them, the advance payment of KRW 179,416,50, and the advance payment of KRW 79,684,00,00, which is paid in advance to the subcontractor and KRW 550,894,00,00 (as of March 31, 2014), the second period of construction (as of March 31, 2014) is KRW 50,894,90,00, KRW 179,416,500, KRW 709,00,00). Accordingly, the Plaintiff received the construction price from the Defendant in excess of its share ratio of construction.

B. Determination

On May 19, 2014, the Plaintiff and the Defendant requested the Defendant to change the share ratio of the instant construction project, and the Defendant approved the change of the share ratio on May 22, 2014, as seen earlier. However, the Plaintiff and the Defendant cannot accept the Plaintiff’s assertion of unjust enrichment exceeding the Defendant’s share ratio of construction cost to receive unjust enrichment from April 1, 2014 to December 21, 2014, in light of the following circumstances: (a) the period for calculating the share ratio of construction cost pursuant to the withdrawal from a joint contractor of BB construction; (b) the date for calculating the share ratio of construction cost pursuant to the Plaintiff’s withdrawal from the joint contractor of BB construction; and (c) the fact-finding of the comprehensive architect office of this court’s fact-finding and the entire purport of the pleadings; and (d) it is reasonable to deem that the Defendant agreed between the Plaintiff and the Plaintiff as of March 31, 2014 as the date of the second joint contractor of BB construction examination.

(1) Where a joint venture in the method of joint performance and a contractor enter into an agreement with individual members who are not joint contractors to acquire rights to a subcontractor directly in accordance with the terms and conditions of the contract for construction works, the claims held against the subcontractor in relation to the contract for construction works may be reverted to each member of the joint contractors in proportion to their shares. The joint supply and demand agreement in which the members of the joint contractors in the method of joint performance agree to be directly paid the price for construction works or the price for construction works by each member of the joint contractors shall be deemed to be an agreement between the members of the joint contractors in relation to the subcontractor by classifying the claims for construction works in proportion to their shares, barring any special circumstance (Supreme Court Decision 2012Da107532 Decided February 28, 2013

With respect to the instant case, the Plaintiff and the BB General Construction specified their respective investment ratios to the Defendant at the time of concluding the first and second construction contracts, and submitted an application for the payment of the price set forth by the members of the joint supply and demand contractors, and the payment of the price was agreed to be made individually to the members of the joint supply and demand contractors. In addition, the Plaintiff and BB General Construction received advance payment from the Defendant according to their respective investment rates and submitted advance payment guarantees respectively. In light of the aforementioned circumstances, the claim against the Defendant under the second construction contract is divided into the Plaintiff and BB General Construction, a joint purchase and demand contractor, according

② On May 16, 2014, the Plaintiff filed an application with the Defendant for a change in the share of the members of the joint supply and demand headquarters, and attached a written agreement on the change of the contract price (Evidence A 4-3) under which the Plaintiff agreed to change the remaining portion of the construction project to the Plaintiff’s share of 10%, the entire construction share of 71.59%, and the BB General Construction 28.41% until the second progress payment was made (the total construction share of 5,611,740,000 won until the second progress payment was made).

In addition, the Plaintiff and BB General Construction made an agreement on the change of equity shares (Evidence A 4-4) to the effect that the Plaintiff may adjust equity shares in the remaining construction amount that will arise from April 1, 2014 to 100, and that the latter adjustment of equity shares can be adjusted after the completion inspection by the supervisory authority. In addition, the written statement on the change of equity shares (Evidence A 4-9-9) stating that the former contract amount is KRW 5,611,740,000 among the total construction amount of the instant construction project (based on the construction amount as at the time the Plaintiff requested the change of equity shares), the former contract amount is equal to the construction amount until March 31, 2014, among the construction amount (based on the construction amount as at the time of the request for the change of equity shares).

③ On May 22, 2014, the Defendant changed the Plaintiff’s share ratio from 50% to 71.592%, and the BB comprehensive construction ratio from 50% to 28.408%. This constitutes a share in the total construction amount calculated by calculating each share ratio of the members of the joint supply and demand organization until payment for the second progress payment for the second construction contract.

In other words, BB Comprehensive Construction more than KRW 30,064,970,50 ( KRW 1,652,745,500 for the first construction price + KRW 600,00 for advance payment + KRW 136,115,100 for the first installment payment + KRW 90,128,40 for the first installment payment + KRW 221,958,275 for the second installment payment + KRW 364,23,255 for the second installment payment). Therefore, the Defendant still received excess advance payment.

⑤ The Defendant paid the construction cost on the premise that the Plaintiff completed the third time period in entirety while paying the third time period under the second construction contract to the Plaintiff. On August 27, 2014, the employees in charge of the Seoul RegionalCC, affiliated with the Defendant, returned KRW 259,100,50 to the Plaintiff on August 27, 2014, but the amount of the advance payment, excluding KRW 79,684,00,00,000, excluding the advance payment paid to the subcontractor by the BB General Construction, was stated to be the balance of the advance payment to be recovered. Thereafter, around October 22, 2014, the Defendant filed a claim against the Construction Mutual Aid Association for the guarantee money on the ground that the BB General Construction did not perform construction works that amounted to advance payment.

C. Sub-committee

Ultimately, the Plaintiff completed all of the instant construction works independently, not joint contractors from April 1, 2014. Accordingly, the Defendant is obligated to pay to the Plaintiff the remainder of the construction price of KRW 179,416,500 under the contract for the second construction works and the damages for delay calculated by the rate of 6% per annum as stipulated in the Commercial Act from July 19, 2014 to December 15, 2015, which is the date of delivery of a copy of the instant complaint from July 19, 2014 to the date of full payment, and 15% per annum as stipulated in the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day

4. Conclusion

The plaintiff's claim of this case shall be accepted on the grounds of its reasoning.