(영문) 서울남부지방법원 2018.06.29 2017가합107668

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(영문) 서울남부지방법원 2018.06.29 2017가합107668

부당이득금

Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On October 5, 2016, the Plaintiff subcontracted the manufacturing and installation of mechanical parking equipment (hereinafter “instant construction”) to the Defendant by setting the construction cost of KRW 228,800,000 (including value-added tax) and the construction period from October 10, 2016 to January 31, 2017.

(hereinafter “instant subcontract”). (b)

On October 25, 2016, the Defendant re-subcontracted the instant construction work to C Co., Ltd. (hereinafter referred to as “C”) at KRW 216,700,000 (including value-added tax).

C. The Defendant completed the mechanical parking facility and delivered it to the Plaintiff, and the Plaintiff paid the Defendant the total construction cost of KRW 228,800,000.

[Reasons for Recognition] Uncontentious Facts, Gap evidence No. 1, Eul evidence No. 2, the purport of the whole pleadings

2. Determination

A. The Plaintiff’s alleged mechanical parking facilities are very important in that human life accidents, etc. may occur in the event of a problem. The Plaintiff requested the instant construction to the Defendant due to high technical capabilities and recognition.

However, in violation of Article 29 (1) of the Framework Act on the Construction Industry, all or essential parts of the instant construction

Since part of the subcontract contract in this case was in violation of the important terms and conditions of the subcontract contract in this case, the plaintiff may rescind the subcontract in this case.

Therefore, the defendant is obligated to pay the construction cost of KRW 228,800,000 paid by the plaintiff to the plaintiff as a result of restitution, and damages for delay.

B. In determining one contract for construction works, unless there are special agreements between the parties in the contract, or there are special circumstances, such as that the contractor cannot perform the work according to the principal place of the obligation unless the contractor himself/herself exists due to the nature of the work, the contractor himself/herself shall not have to complete the work, and even if using the performance assistant or the performance agent, he/she shall be deemed to have fulfilled the contract as stipulated

참조조문

-건설산업기본법 제29조 제1항

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