Whether the contractee's right to repair the defects or the right to claim damages are simultaneously implemented with the contractee's right to pay remuneration (affirmative)

If there is a defect in the object completed in a contract for work, the contractor may claim for the compensation of the defect against the contractor in lieu of, or together with, the repair of the defect. This claim is in the concurrent performance relationship with the contractor's claim for the construction cost, barring any special circumstances. Therefore, if the contractor holds the defect repair or the right to claim damages and exercises it, the contractor's obligation for the payment of the construction cost is not attributable to delay, and the contractor's obligation for the payment of the defect compensation or the right to claim damages is not attributable to delay, but is due to the date following the contractor's declaration of set-off by designating the contractor'

Articles 387, 536, 665, and 667 of the Civil Act

Supreme Court Decision 88Meu18788 Decided December 12, 1989 (Gong1990, 249) Supreme Court Decision 91Da33056 Decided December 10, 1991 (Gong1992, 490) Supreme Court Decision 94Da26011 Decided October 11, 1994 (Gong194Ha, 2965)

Plaintiff (Counterclaim Defendant) (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Attorney Kang Young-soo, Counsel for defendant-Counterclaim)

Seoul High Court Decision 94Na38382, 38399 delivered on January 9, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below concluded a construction contract between the plaintiff (Counterclaim defendant; hereinafter the plaintiff) and the defendant (Counterclaim plaintiff; hereinafter the defendant only) on March 23, 1992 to newly construct the building of this case on March 23, 1992, and agreed that the construction cost shall be KRW 300,000,000 per square meter and shall be paid in installments in accordance with the final judgment. The court below acknowledged that the plaintiff completed the construction of the building of this case and delivered it to the defendant on August 15, 199, and decided that the basic construction cost of the building of this case is KRW 300,000,000 per square meter, provided that it is not trusted, and that the basic construction cost of this case is KRW 300,000,000 per square meter.

In light of the records, the above judgment of the court below is fully acceptable, and on the other hand, the above judgment of the court of first instance, which cited the above increased construction cost of KRW 6,00,000,00, can be recognized as the fact that the defendant filed an appeal against the judgment of the court of first instance which accepted the above increased construction cost of KRW 6,00,00. Thus, even if the judgment of the court below is somewhat insufficient, the plaintiff's assertion that the plaintiff increased construction cost of the building of this case to the extent of three square meters above the original scheduled construction

Therefore, the judgment of the court below is not erroneous in the misunderstanding of legal principles as to non-influence facts, incomplete hearing, or finding facts not based on evidence, or omitting judgment. There is no reason to argue.

2. The judgment of the court below as to the point where theory of lawsuit points out (the point where the building in this case was constructed along the west from the design drawing, and the entrance of the parking lot located northwest of the building in this case was narrow from 2.325m to 2m, making it impossible to enter the above building, and the defendant demanded additional construction of 11 items, such as the main entrance replacing entrance, while paying separate costs, such as the defendant demanded additional construction, and the building 3 and 4 parts of the building in this case are constructed under a lighting structure different from the design drawing, and the reinforcement construction is necessary in the aspect of structural safety) is all acceptable in light of the evidence relation cited by the court below, and there is no error of law of experience and logic such as theory of lawsuit, or of misconception of facts due to a violation of the rules of evidence.

All of the arguments are not acceptable since they merely criticize the selection of evidence and the recognition of facts, which are the exclusive authority of the court below. All of the arguments are without merit.

3. Where there is a defect in a contract for work, the contractor may claim against the contractor for the repair of the defect, and the contractor may claim damages in lieu of or together with the repair of the defect, unless there are special circumstances. Thus, the contractor's claim is in a concurrent performance relationship with the contractor's claim for the payment of the contract price. Thus, if the contractor holds the defect repair or the right to claim damages as such, the contractor's obligation for the payment of the contract price does not fall short of delay, and the contractor's obligation for the payment of the contract price shall be deemed to fall short of delay from the following day after the contractor expresses his intention of set-off with the contractor's claim for the remainder of the contract as an automatic claim (see Supreme Court Decisions 8Da18788, Dec. 12, 1989; 91Da3056, Oct. 11, 1994; 94Da26011, Oct. 11, 1994).

The court below held that the plaintiff's claim for the remainder payment of the construction of this case against the building of this case is related to simultaneous performance with the amount equivalent to 50,200,139 won as the defendant's claim for damages against the building of this case. This decision is just in accordance with the purport of the Supreme Court's decision as above, and there is no error of law by misunderstanding legal principles as to the theory of lawsuit or violation of precedents. We do not have merit.

4. Therefore, the appeal is dismissed, and all 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 Ahn Yong-sik (Presiding Justice)