[1] The nature of the contract guarantee certificate issued by the Construction Mutual Aid Association under the former Construction Mutual Aid Association Act and the subject of such guarantee

[2] Whether a contractor’s obligation to return an advance payment is included in the subject of the above contract guarantee in a case where the contractor’s obligation to return the advance payment is cancelled due to a cause attributable to the contractor after the contractor received an advance payment from the contractor (affirmative)

[3] In a case where a contract for construction work is terminated due to a cause attributable to a contractor and the construction work is interrupted, and the construction work is completed as a result, whether the contract guarantor’s liability to guarantee the contract is extinguished or changed (negative)

[1] In full view of the provisions of Article 2 subparag. 2 and Article 8(1)1 of the former Construction Mutual Aid Association Act (repealed by Act No. 5230 of Dec. 30, 1996) and Article 2 subparag. 2 of the Enforcement Decree of the same Act, a contract guarantee issued by a construction mutual aid association to a contractor who is a member under the same Act is ultimately a substitute for a contract deposit or contract performance guarantee that the contractor pays to the contractor at the time of the contract for the construction, and the contractor guarantees the performance of the contract for the construction that the contractor shall complete the construction within the stipulated construction period. If the contractor bears the obligation to the contractor due to the reasons attributable to the contractor during the process of the contract execution, it guarantees the performance of the obligation.

[2] If the contractor, who is a member of the construction mutual aid association, was awarded a contract and received an advance payment from the contractor, and then delivered the contract guarantee certificate issued by the construction mutual aid association to the contractor, and if the contract was terminated due to the contractor's reasons attributable, the obligation to return the advance payment is included in the contract guarantee obligation of the construction mutual aid association, which occurred due to the cancellation of the contract due to the contractor's default.

[3] If a contractor has lawfully terminated a contract for construction work on the ground of the contractor's default, the contractor and the guarantor of the contract shall be liable to restore the contract, and the guarantor of the contract shall not be liable to return the advance payment of the guarantor, and the guarantor of the contract shall not be liable to the guarantor's obligation to restore the contract. Thus, even if the contractor entered into a contract for construction work between the contractor and the guarantor of the contract after the discontinuance of the contract and the work are completed, the contract guarantor's obligation to guarantee the contract shall not be extinguished or changed even if the work

[1] Article 2 subparag. 2 and Article 8(1)1 of the former Construction Mutual Aid Association Act (repealed by Article 2 subparag. 1 of the Addenda of the Framework Act on the Construction Industry, Act No. 5230, Dec. 30, 1996); Article 2 subparag. 2 of the former Enforcement Decree of the Construction Mutual Aid Association (repealed by Article 3 of the Addenda of the Enforcement Decree of the Framework Act on the Construction Industry, Jul. 10, 1997); Article 2 subparag. 2 of the former Construction Mutual Aid Association Act / [2] Article 2 subparag. 2 and Article 8(1)1 of the former Construction Mutual Aid Association Act (repealed by Article 2 subparag. 1 of the Addenda of the Framework Act on the Construction Industry, Act No. 5230, Dec. 30, 1996); Article 2 subparag. 2 of the former Enforcement Decree of the Construction Industry Mutual Aid Association (repealed by Presidential Decree No. 15433, Jul. 10, 1997) / [3]

[1] [2] Supreme Court Decision 94Da54702 delivered on March 22, 1996 (Gong1996Sang, 1336) / [1/3] Supreme Court Decision 96Da23306 delivered on March 26, 199 (Gong199Sang, 754) / [1] Supreme Court Decision 97Da18813 delivered on August 26, 1997; Supreme Court Decision 99Da14846 delivered on October 12, 199 (Gong199Ha, 2316) / [3] Supreme Court Decision 9Da20773 delivered on October 8, 199 (Gong199Ha, 2295)

Ansan-si (Attorney Doo-gu, Counsel for defendant-appellant)

Construction Financial Cooperative (Attorney Jin-hun, Counsel for the plaintiff-appellant)

Seoul High Court Decision 99Na44092 delivered on January 26, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

On the second ground for appeal

According to the reasoning of the judgment below and the judgment of the court of first instance as cited by the court below, on July 25, 1996, the plaintiff entered into a contract for construction works of this case with the non-party 2.827 billion won, and 24 months from the commencement date of the construction period. On the same day, the defendant entered into a contract for construction works of this case with the non-party 2.5 billion won, and the contract bond of this case with the former Construction Mutual Aid Association Act (the Framework Act on the Construction Industry was abolished on July 1, 1997; hereinafter referred to as the "Construction Mutual Aid Association Act") with the contract bond of 320,029,100 won and delivered it to the plaintiff. The plaintiff paid the above contract bond of this case to the non-party 4.5 billion won, and the defendant paid the above contract bond of this case to the non-party 5.7 billion won, which was revoked on September 25, 1996.

In full view of the provisions of Article 2 subparag. 2 and Article 8(1)1 of the Construction Mutual Aid Association Act and Article 2 subparag. 2 of the Enforcement Decree thereof, a contract guarantee that the Defendant issues to a contractor who is a member of the Construction Mutual Aid Association Act in lieu of a contract bond or contract guarantee that the ordinary contractor pays to the contractor at the time of the contract for construction works, which guarantees the performance of the contract for construction works that the contractor shall complete the construction works within the period agreed upon by the contractor. If the contractor is liable to the contractor due to a cause attributable to the contractor in the course of the contract execution, the contractor shall be liable for the performance of the contract. If the contract is terminated due to the cause attributable to the Corporation, and the advance payment is returned to the Plaintiff due to the termination of the contract, the obligation to return the advance payment is included in the subject of the contract guarantee that the contractor is the contractor due to the termination of the contract due to the breach of the contract (see, e.g., Supreme Court Decision 9Da475, Mar. 22, 1996).

On the first ground for appeal

As seen earlier, as long as the plaintiff lawfully terminated the contract of this case on the ground of the contractor's default, the defendant, who is the contractor, bears the duty to restore it to the original condition, and the contractor, also bears the obligation to restore the advance payment of the respondent, and the guarantor, who is not obligated to complete the work that the contractor has not completed (see Supreme Court Decision 9Da20773, Oct. 8, 199). As such, it is not reasonable in the judgment of the court below to the effect that the plaintiff, who is the contractor, concluded a contract for construction works with the contractor after the discontinuance of the construction work that is the guarantor, concluded with the contractor and implemented the construction work with the contractor, and eventually, the obligation to guarantee the contract is not extinguished or changed even if the construction work of this case was completed, and there is no violation of the rules of evidence, omission of judgment, lack of reasons, lack of reasons, and any allegation in the grounds of appeal that there is an error of law as to the interpretation of the parties

On the third ground for appeal

The judgment of the court below which held that the plaintiff's claim of this case cannot be deemed an act contrary to the principle of good faith on the ground that the plaintiff's claim for the payment of the unpaid balance was made to the defendant based on the advance payment guarantee, but the defendant refused to pay the insurance money on the ground that there was an accident that occurred after the advance payment guarantee period has expired, and the plaintiff did not have the defendant's obligation to guarantee the advance payment, and that the defendant's claim for the return of the advance payment was made based on the contract guarantee of this case. We cannot accept the allegation in the grounds of appeal that there

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 Jack-dam (Presiding Justice)