2013Da33683 Collection Money

A

E. E.S. Holdings

Daejeon High Court Decision 2012Na4129 Decided April 9, 2013

April 15, 2016

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. The lower court acknowledged the facts as indicated in its reasoning based on the adopted evidence, and found it difficult to view that: (a) the work consultation on August 17, 2009 was made between B and the Defendant, a subcontractor, not Doroto Co., Ltd.; (b) there is room to regard the contents of the subcontract as pertaining to the sub-project site, which was not originally included in the subcontract agreement; (c) there is no special evidence to deem that the Plaintiff discussed Doroto and the Defendant’s settlement of volume in addition to the above work consultation, despite a significant difference between the quantity of soil work and the subcontract quantity claimed by the Plaintiff; (c) it is difficult to deem that the F was in a position to verify the content of the work report on behalf of B; or (iv) in light of other materials, it is difficult to deem that Doroto actually performed the construction work in the quantity indicated in the work report; and (d) it is difficult to deem that the Plaintiff’s claim for the payment of the work price in accordance with the agreement and the contract amount.

2. However, the lower court’s determination is difficult to accept for the following reasons.

(1) According to the reasoning of the lower judgment and the record, ① Doro dar is calculated by applying a unit price to the expected quantity when the Defendant was awarded a subcontract for the construction of soil and structures. ② The expected quantity applied is the quantity calculated on the basis of the design drawings offered by B when the Defendant was awarded a contract for the construction of a site from B. It is the quantity calculated on the basis of the design drawings provided. ③ However, on June 30, 2009, when Doro dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar dar g dar d dar dar dar dar dar.

According to the above facts, it is sufficient to see that the agreement on the method of payment of earth and sand not only B and the Defendant, but also B and Doroto case where D participated in the Defendant’s on-site director and in the capacity of agent for Doroto case, as a considerable difference occurs between the expected quantity at the time of the contract and the actual quantity at the site, it appears that the agreement on the method of payment of earth and sand is reached on August 17, 2009 with respect to four items, including the settlement of price for earth and sand work, which were under consultation about the scope of earth and sand construction, method of price calculation, direction of the future construction, etc., and it is reasonable to see that the agreement on the method of payment of soil and sand is not made on the basis of separate settlement of the cost for the earth and sand work, or on the basis of the fact that the cost for the whole soil and sand work was not made on the basis of separate settlement of the cost for the work after the agreement on the work.

(2) In addition, work daily reports are documents prepared in the position of the defendant as well as the defendant in the position of the field manager of the defendant. The following circumstances revealed by the reasoning of the judgment below and the records, i.e.,: (i) in the process of requesting Dororoto on the last day of each month, the defendant or B did not raise any objection to the contents of the quantities themselves; (ii) in addition to the payment of progress payment as well as the payment of 698,000,000 won to the Dorototous claim, the defendant requested progress payment and suspended work until October 25, 2010 after suspending work, the amount of 35,475,30 won was paid in a direct payment manner, and the amount of Dorotototoer's work to be conducted on the basis of the difference between the construction site error and the construction site error; (iii) the amount of Dorotoer's work to be conducted on the basis of the difference between the construction site error and the appraisal quantity to be determined by the appraiser's.

Therefore, the lower court should have deliberated on the method and basis for measuring the quantity of work indicated in the work daily report, the preparation and verification process of the work daily report, and whether the input or work content of the materials indicated in the work daily report conforms to other objectively verifiable materials, etc., and should have determined the legitimacy of the Plaintiff’s assertion that the work price is calculated on the basis of the quantity listed in the work daily report, to the extent that it can be objectively calculated in light of the input details of the materials or the content of the work.

(3) Nevertheless, the lower court, solely based on its stated reasoning, determined that Doroto was difficult to deem that Doroto was actually engaged in the construction of the quantity as indicated in the work log or agreed to settle the price for the subcontract with the Defendant based on such quantity. In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the establishment of an agreement, thereby adversely affecting the conclusion

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

Justices Lee In-bok, Counsel for the appeal

Justices Kim Yong-deok

Justices Lee Dong-won