Gwangju Construction Heavy Co., Ltd. (Attorneys Won Young-su et al., Counsel for the plaintiff-appellant)

Senior Gyeong-ju, a joint management of a rehabilitation company, which is a lawsuit taking over the lawsuit of a gold mine company (Law Firm Jeong-ju, Attorneys Ahn Sung-sung et al., Counsel for defendant-appellant

Young House Co., Ltd.

December 8, 2010

Seoul Eastern District Court Decision 2008Gahap4788 Decided September 11, 2009

1. Upon an exchange change at the trial, the plaintiff's rehabilitation claim against the gold-backed company is 854,934,00 won and 418,885,000 won among them, and the amount equivalent to 25% per annum from Nov. 8, 2008 to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. A. The Plaintiff shall pay to the Defendants 1,655,504,47 won as a result of the return of the provisional payment and 5% interest per annum from November 17, 2009 to February 16, 201, and 20% interest per annum from the next day to the date of full payment.

B. The above paragraph (a) can be provisionally executed.

4. The total cost of the lawsuit (including the cost of filing an application for the return of provisional payments) shall be divided into two parts, and the remainder shall be borne by the Plaintiff, and the Defendants, respectively.

1. Purport of claim

The plaintiff's rehabilitation claim against the gold-gu Corporation (hereinafter "non-party company") is a 25% amount per annum for 1,489,534,658 won and for 931,206,510 won among them, 481,527,700 won from April 15, 2008, and for 481,527,700 won from November 8, 2008 to the date of full payment (the plaintiff changed the claim for payment of the amount to the final claim).

2. Purport of appeal

The part of the judgment of the first instance against the non-party company shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

3. Purport of request for the return of provisional payments

Paragraph (3) of this Article.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings as a whole in the entries in Gap evidence 1-1-4, Gap evidence 2-1, 2-2, and Gap evidence 3:

(a) Conclusion of a contract agreement;

원고는 2006. 6.경 소외회사와 사이에, 소외회사가 피고보조참가인(이하 보조참가인이라고 한다)으로부터 도급받은 부산 강서구 명지동 퀸덤아파트 기초공사 중 A4블록(301동 내지 317동)의 SHEET파일 및 PHC파일 공사(이하 이 사건 공사라고 한다)에 관하여 공사대금 48억 75,989,000원(부가가치세 포함), 공사기간 2006. 7. 5.부터 2007. 4. 17.까지로 하는 내용의 하도급계약(이하 이 사건 원계약이라고 한다)을 체결하였다.

(b) Main contents of the contract;

The specifications attached to the original contract of this case were as follows: “4,087 MH file works are installed with two ouble Auger method, one tent air, and the inner gate shall be installed with a screen, and the inner gate shall be installed with a screen to make a hole, and the outer gate shall be installed to prevent the sprinking around the hole made by installing a rink, and the outer gate shall be installed to prevent the sprinking and the sprinking shall be applied.”

Meanwhile, the main contents of the “construction subcontract agreement” and “special conditions”, which are the contents of the instant prime contract, are as follows.

i. Agreement on the Construction Works (main sentence)

Article 13 (Unconforming Works)

1. A non-party company may request correction of any part inconsistent with design drawings and specifications during the construction works performed by the plaintiff, and the plaintiff shall comply with such request without delay. In such cases, the plaintiff may not request an increase in the contract price or an extension of the air.

(2) In cases falling under paragraph (1), if the inappropriate execution is due to a request or execution by a non-party company or any other reason not attributable to the plaintiff, the plaintiff shall not be held liable.

Article 14 (Change and Suspension of Construction Works)

(1) When the non-party company deems it necessary or at the request of the project owner changes the details of construction or temporarily suspends all or part of additional construction works, it shall deliver to the plaintiff a written modified contract and other documents.

(3) General management expenses and profits for the increased or decreased portion of contract amount shall be determined at the time of conclusion of contract.

④ Under the direction of the non-party company, the non-party company shall pay the Plaintiff increased the construction volume additionally executed by the Plaintiff, even if the employer did not receive an increase.

i.e. special conditions

(a) Common matters:

11. Modification of designs and adjustment of contract amount;

1) Quantity shall be deemed not to have increased or decreased except for a change in the design, and shall be adjusted and changed in accordance with the volume of the original contract.

2) Design modification should apply, increase or decrease the contractual unit price in principle. In this context, an increase in indirect costs due to extension of the air is not recognized.

4) Since the contractual unit price is an estimate that takes into account the cost of materials and the rate of increase in personnel expenses until the completion of construction, there is no change in the unit price (unit price) until the completion of construction.

5) The quantities are recognized only as contract quantities and the increase is not recognized as construction quantities and are deemed to be included in the unit price of a term contract.

6) Where the direction of work instruction, change of public law, change of design, etc. was verbally delivered to the Plaintiff, the Plaintiff shall make it in writing and obtain approval from us along with related data, and the content of the unwritten construction shall not be valid.

(b) The details of special circumstances for the relevant type of work;

1) It does not require the non-party company to cover construction costs other than the amounts specified in the contract terms with respect to the port of call.

3) The costs of the material damaged during the course of transport and management of files and the port shall be borne by the Plaintiff.

(c) Conclusion of a modified contract and the progress of works;

1) The first modified contract

이 사건 공사 부지는 바다를 매립하여 택지로 조성한 곳으로서 지반이 약하여 당초 약정한 PHC파일공사 방법으로는 아파트건축에 충분한 지내력을 확보하기 어려운 것으로 판명되었다. 이에 원고와 소외회사는 PHC파일공사 방법을 변경하여 ‘퀸덤아파트 314동 부지는 45m 깊이로 250공을 설치하되, 먼저 DRA공법으로 14m를 천공한 후 보조항타 및 파일항타를 하고(이하 이를 45m 파일공사라고 한다), 나머지 부지는 55m 깊이로 2,982공을 설치하되, 먼저 DRA공법으로 45m를 천공한 후 파일항타’를 하는(이하 이를 55m 파일공사라고 한다) 방법으로 시공하기로 하였다.

On December 20, 2006, the Plaintiff and Nonparty Company entered into a modified contract with the content that the construction cost shall be increased to KRW 11.1.95,358,000 (hereinafter “the first modified contract”) by 11.1 billion (hereinafter “the first modified contract”).

(ii) the second modified contract and the completion of the work;

The Plaintiff completed all works except for SHE file launch works by means of 45m file work until March 2007 and 2,760 files work by means of 55m file work, according to the direction of the non-party company and the non-party company’s instructions. However, the non-party company cannot perform SHE file launch works (the temporary walls supporting both soil walls among the earth work so that they do not collapse into the construction site) on the wind that is delayed. As the completion of the construction was delayed due to inevitable delay, the Plaintiff and the non-party company entered into a modified contract (hereinafter referred to as the second modified contract, and the contract of this case and the contract of this case collectively as the contract of this case and the contract of construction contract of this case) with the content that extended the construction period on April 16, 2007 from July 5, 2006 to November 30, 2007.

On February 16, 2008, the Plaintiff completed the SHE file launch work, and immediately delivered the object to the non-party company, and the construction cost that the Plaintiff received from the non-party company is KRW 10 billion in total.7.4 million in total.

(d) Objection by a joint manager to decide on the commencement of rehabilitation procedures and report on claims;

On May 28, 2010, the non-party company was decided to commence rehabilitation procedures by the Gwangju District Court 2010 Ma14, and the Defendants were appointed as joint managers. The Plaintiff reported the claim for the construction cost of this case as rehabilitation claims in the above rehabilitation procedures with the claim amount of KRW 2,169,234,418, but the Defendants raised objection on the ground that the lawsuit is pending.

2. Settlement of construction cost;

A. The parties' assertion

1) Plaintiff

If the construction price of this case is settled according to the final design change of the Corporation, the construction price of this case is KRW 10.476,497,00 (including value added tax) as stated in the corresponding column of the “Report on the Settlement of Plaintiffs’ Claim”. Thus, the non-party company is obligated to pay the Plaintiff the amount of KRW 10.76,497,00 (i.e., KRW 10.76,497,000 less the amount of KRW 10.87,400,000 from the amount of KRW 10.476,497,000,000, KRW 10.476,497,000 - KRW 10,087,400) and damages for delay.

2) The Defendants

① Although the Plaintiff’s 55m file construction work had to be carried out in 45m as DDR method, 41m only had to be 45m only, and among them, 29.5m only 29.5m only for the section in which ring was carried out. The remaining section shall be calculated as 50,000 won per unit price per file unit price or 3,000 won per unit price per file unit price for 15,000 or 4,000 won per unit price. ② The Plaintiff did not use T4 equipment, a factory for base base-only in PHC file work, and thus, the relevant construction cost must be excluded from the calculation of the settlement amount. ③ The cost of the service file can be recognized as having been actually carried out, and the construction cost shall be calculated by multiplying the construction cost by a unit price per unit price for the construction work.

(b) Costs for construction of DDRA0s;

The reasoning for this Court’s explanation is that the first instance court’s 6th to 7th 7th 12th 7th 4th 7th 7th 7th 2007 (“207th 16 February 16, 2008”) except that the “3rd 4th 7th 7th 7th 7th 7th 7th 7th 7th 8th 7th 2008”) are the same.

(c) T4 equipment cost;

Since there is no dispute between the parties that the Plaintiff did not use T4 equipment in the course of performing the instant construction, the construction cost corresponding to [45m section] and [55m section] under the [Attachment 1] Statement of Settlement of Claim by the Plaintiff,” should be excluded from the content of settlement.

As to this, the Plaintiff’s construction site of this case had been buried at the 1st 5m thickness of 4m to be removed from the 1st 5th m, and then planned to remove 19,3920,000 won by T-4 equipment at the time of the contract, the Plaintiff’s 1 to 5th mar 1 to 7th mar 1 to 5th mar 1 to 6th 1 to 7th mar 1 to 5th 6th mar 1 to 7th 1 to 5th mar 1 to 7th mar 1 to 5th mar 1 to 5th mar 1 to 5th mar 1 to 5th mar 1 to 6th mar 1 to 5th mar 6th mar 1 to 5th mar mar mar 1 to 5th mar mar 1 to 7th m m 1 to 1 to m.

The plaintiff's above assertion cannot be accepted.

(d) Service stress costs.

The court's explanation on this part is the same as the 9th 5th eth eth eth eth eth eth eth eth eth eth eth eth eth eth

(e) Balance settlement;

Ultimately, among the “1. The Plaintiff’s argument settlement statement”, the expenses for the DNA file work 5m or 45m file work and 55m file work should be included in the settlement statement. However, the cost for the file work and 4,000 files work 5m or 55m file work should be excluded from the settlement statement.

Accordingly, the total construction cost is KRW 10.25,671,00 upon the settlement of the instant construction cost, such as [Attachment 2.1] and the settlement of accounts for construction cost. As such, the amount to be paid by the non-party company to the Plaintiff as the remainder of the construction cost is KRW 10.28,271,000 (=10,265,671,000) and the amount to be paid by the non-party company to the Plaintiff as the remainder of the construction cost (=10,087,40,000).

3. Calculation of additional construction costs;

(a) Additional construction cost of KRW 181,170,000 due to damage to a PH file;

This court's explanation is the same as the 10th court's 10th court's 5th court's 14th court's 10th court's 5th court's 5th court's 14th court'

(b) Expenses for the test test;

1) The plaintiff's assertion

The plaintiff asserts that the non-party company is obligated to pay to the plaintiff KRW 360,930,510 in total the cost of using the equipment and operating the equipment air due to the test test, as well as the non-party company is obliged to pay the plaintiff KRW 360,930,510, because it revealed that it was impossible to secure the internal power necessary for the construction of the apartment as the design content of the design of the pet draft after the contract of this case.

2) Determination

In full view of evidence No. 6, evidence No. 39-1 to 54, evidence No. 40-1 to 53, evidence No. 41-1 to 30, evidence No. 41-1 to 30, and the overall purport of the pleadings as a result of the appraisal by Nonparty 1 of the first instance trial, the Plaintiff and Nonparty Company changed the design of the PHC file Corporation to supplement the lack of internal proof of the construction site after the conclusion of the original contract of this case. To this end, the Plaintiff conducted the test test with the Plaintiff’s equipment from June 1, 2006 to August 29, 2006; the Plaintiff’s equipment was used for 17 days in total; the Plaintiff’s equipment used for the said test; the equipment use cost for the said 17-day construction period was calculated in accordance with the construction standard unit cost for the above 17-day period; thus, Nonparty Company is obligated to pay KRW 59,44,00,00 for additional expenses pursuant to the test.

The Plaintiff asserts that the Plaintiff should pay the cost of using the equipment for the waiting period for the non-party company’s work order and until the design change becomes final and conclusive, but it cannot be readily concluded that the instant construction used the test equipment and continued to remain without leaving the site, and that it was immediately waiting for the equipment for the test test, and there is no evidence to prove that the non-party company ordered the Plaintiff to install the equipment, or agreed to pay the waiting cost separately. Thus, the Plaintiff’s above assertion cannot be accepted.

In addition, the plaintiff asserts that the equipment cost of the test test shall be calculated in accordance with the daily pricing table presented by the plaintiff to the non-party company, but there is no evidence to acknowledge that the non-party company consented thereto. Therefore, the above assertion is without merit.

3) Determination as to the defendants' assertion

The Defendants asserted that, at the time of the instant construction contract, the construction cost related to the navigationta does not require the non-party company to pay the expenses in addition to the amount specified in the contract statement, as well as the Plaintiff demanded the payment of the expenses for the navigational test on August 8, 2006 and reflected in the first revised contract concluded on December 20, 2006, the Plaintiff cannot demand the non-party company to pay the additional expenses incurred from the navigational test.

The special condition of the instant construction contract provides that “the construction cost other than the amount specified in the terms and conditions of the contract in relation to navigation shall not be required to the non-party company.” However, in full view of the purport of the argument in Gap evidence 2-2, it is acknowledged that the statement in the statement of construction cost attached to the first modification contract is stated as “the condition of separate settlement of construction cost only for the test file construction for modification of 3......... According to the above facts, the time-off under the special condition of the said construction contract is merely a pilot work prior to the plaintiff initiates the main port in accordance with the design drawing, and it is reasonable to view that the test-off under the special condition of the said construction contract has only been reflected in the construction cost for the purpose of design modification without the electronic file construction method being determined, and it cannot be viewed as including the cost of construction for the first modification in the item column of the statement attached to the first modification contract in light of the following reasons: “The cost of construction cost shall not be considered as having been included in the calculation of the plaintiff and the non-party company.”

Therefore, the above assertion by the Defendants is without merit.

(c) Additional fees for the use of SHE file due to air extension;

The court's explanation on this part is identical to the 11th court's 19th court's 11th court's 19th court's 13th court's 13th court's 7th court's 19th court's

4. Judgment on damages for delay

(a) Duplicate of the complaint, purport of the claim and delay damages after the date of service of the copy of the application for modification;

Article 13(2) of the Fair Transactions in Subcontracting Act provides that "if the date of payment of subcontract consideration has not been determined, the date of receipt of the object, etc., and if the date of payment of subcontract consideration has been determined in excess of 60 days from the date of receipt of the object, etc., the date 60 days from the date of receipt of the object, etc. shall be deemed the date of payment of subcontract consideration," and Article 13(8) of the same Act provides that "if the prime contractor pays the subcontract consideration in excess of 60 days from the date of receipt of the object, etc., the payment shall be made in accordance with the interest rate determined and publicly announced by the Fair Trade Commission in consideration of economic conditions, such as the overdue interest rate applied by financial institutions under the Banking Act within the limit of 40/100 per annum." The interest rate announced by the Fair Trade Commission (Article 2004-6) is 25% per annum from the date of delivery to the non-party company immediately after the completion of the construction work in this case on February 16, 2008 days from the following day.

As to this, the Defendants asserted that the PH file additional construction costs and the test expenses are damages for tort or nonperformance, and the value-added tax amount included in each of the above construction costs is the tax to be paid by the State, and it is difficult to view the Plaintiff as the construction cost that the Plaintiff received as the subcontractor. Therefore, the damages for delay on each of the above amounts cannot be applied to the interest rate set forth in the Fair Trade Commission’s Notice

Subcontract price under the Subcontract Act refers to the price that the subcontractor receives from the principal contractor for the manufacture, repair, construction, or service entrusted by the principal contractor and supplies, delivers, or provides the principal contractor with the entrusted manufacture, repair, construction, or service (see Article 2(1) of the Subcontract Act), and the cost of PHC file additional construction costs and the test and test expenses are the price that the plaintiff receives in addition to the work stipulated in the original contract, and thus, it constitutes the construction cost. The amount equivalent to value-added tax included in the construction cost is also paid as the price for the construction, and the payment of value-added tax is not only a method of disposing the construction price, since the plaintiff received the construction price, and the payment of value-added tax is not only a method of disposing the construction price. Therefore, the defendants

Therefore, the non-party company is obligated to pay the Plaintiff damages for delay from April 17, 2008 to the date of full payment of KRW 178,271,00 with respect to the construction balance and the additional construction cost of KRW 181,170,00 with additional construction cost of KRW 181,170,000 with the cost of PHCR file + KRW 59,444,000 with the cost of testing + KRW 436,000 with the additional usage fee of KRW 436,000 among them (= KRW 178,271,000 + KRW 181,170,000 + KRW 59,444,000 with the annual interest rate of KRW 436,49,000 with respect to the damages for delay from November 25, 208 to the date of full payment.

B. Damages for delay until March 31, 2008

The Plaintiff asserts that the delivery date of the object of the instant construction shall be March 1, 2007 when the remainder of the construction except the SHE file launch work has been completed, and that the delivery date of the object of the instant construction shall be March 17, 2007 when 60 days have elapsed from April 17, 2007 to March 31, 2008 when the delivery date was 60 days from June 17, 2007 to March 31, 2008.

However, the delivery of the object of the instant construction can only be completed, including the SHET file launch work, and the delivery of the object may not be disturbed, and this is also the same when the completion of the construction is delayed due to a cause attributable to the non-party company. The Plaintiff’s assertion is premised on the fact that there is delivery of the object around April 17, 2007, where SHET file launch work was not completed. Thus, the Plaintiff’s above assertion cannot be accepted. The delivery of the object is delayed because the non-party company cannot perform the SHE file launch work on the wind that is implemented by the non-party company, and the delivery of the object is delayed, as seen earlier, even though the non-party company seeking compensation for damages incurred by the non-party company being unable to timely perform the SHE file launch work, the Plaintiff’s claim for damages cannot be accepted by deeming it to have been delivered at the time of the remainder of the object except for the SHE file launch work to have been completed.

5. Conclusion

Therefore, the claim of this case against the Defendants, an objection, after the Plaintiff duly reported the above claim in the rehabilitation procedure, is accepted within the scope of the above recognition, and the remainder of the claim is dismissed as it is without merit (the judgment of the court of first instance as to the claim for construction cost was withdrawn due to the exchange change of the lawsuit at the trial at the trial at the time, and the judgment on it became null and void). It is so decided as per Disposition.

6. The return of provisional payments.

As to the plaintiff's request for return of provisional payment, Article 215 (2) and (3) of the Civil Procedure Act provides that "where the judgment on the merits is altered or a provisional execution is altered after the judgment on the merits is altered, the court shall, upon request of the defendant, return the goods paid by the defendant according to the declaration of provisional execution, and order the plaintiff to compensate for the damages incurred by provisional execution or for the exemption therefrom, and shall order the plaintiff to compensate for the damages incurred by the provisional execution." Thus, in the case of this case where there was no original judgment to revise the appellate court by withdrawing a lawsuit at the appellate court after the plaintiff received satisfaction from the judgment on the provisional execution of the court of first instance after the plaintiff received satisfaction pursuant to the judgment on the provisional execution of the court of first instance, the appellate court asserts that there is no room for the plaintiff to render a judgment on the return of the provisional payment

The effect of execution based on the judgment of the sentence of provisional execution is not fixed, but it is a condition to cancel or change the judgment on the merits of the next day or the sentence of provisional execution. Even if the execution was conducted by the sentence of provisional execution, if the part or whole of the judgment on the merits of the second day becomes null and void by the previous judgment on the sentence of provisional execution, it shall be confirmed that it cannot be executed by the previous judgment on the sentence of provisional execution, and therefore, if already received by the sentence of provisional execution, it shall be returned as unjust enrichment.

In this case, although the judgment on the merits or the declaration of provisional execution is not directly cancelled or modified by the judgment of the trial court, the judgment on the merits of this case is the same as that on the grounds that the judgment on the merits of this case or the declaration of provisional execution is revoked by the judgment of the trial court, since the plaintiff was sentenced to a partial winning judgment in the judgment of the court of first instance by filing a lawsuit for the payment of construction price claim in the court of first instance and changing the lawsuit from the trial to rehabilitation claim confirmation lawsuit to the court of first instance, and the judgment of the court of first instance becomes null and void as a result, and it becomes final and conclusive that it is impossible to execute the lawsuit based on the judgment on the judgment on the declaration of provisional execution of the

Meanwhile, an application for the return of provisional payment is a system that provides a simple path for an obligor subject to execution by provisional execution to undergo a review of the application by using the procedures for the review of the merits, and its nature is a preliminary counterclaim subject to the revocation and alteration of the judgment on the merits. Therefore, even if a lawsuit for the claim for construction payment was withdrawn due to a change in the exchange of a lawsuit filed in the trial at the original instance and the continuation of a lawsuit related thereto is extinguished, as long as the new procedures for the trial of the claim are pending in the trial at the original instance, it is reasonable to view that the Defendants may seek the return of the provisional payment by using the relevant procedures for the trial, and it is not deemed that it should be returned by filing a separate claim.

Comprehensively taking account of the overall purport of the arguments in subparagraphs 1 and 2-1 and 15-2, the fact that the non-party company paid KRW 1,655,504,477 to the plaintiff on November 17, 2009 in order to avoid compulsory execution of the plaintiff based on the judgment of the court of first instance, and the fact that the judgment of the court of first instance became null and void due to changes in exchange of the lawsuit thereafter is as seen earlier. As such, the plaintiff is obligated to pay the defendants the above KRW 1,655,504,47 as the return of the provisional payment and the damages for delay calculated at the rate of 20% per annum under the Civil Act from November 17, 2009 to February 16, 2011, which is the date of provisional payment, and from the next day to the day of full payment. Therefore, the defendants' application for the return of the provisional payment is reasonable.

[Attachment]

Judges Cho Young-chul (Presiding Judge)