2019Da267679 Construction Price

Plaintiff 1 and two others

Attorney Yellow-hun et al., Counsel for the defendant

Seoul Metropolitan Government

Law Firm LLC et al., Counsel for defendant-appellant

[Defendant-Appellant]

Seoul High Court Decision 2017Na2012996 Decided August 16, 2019

October 29, 2020

The part of the lower judgment against the Defendant regarding the ancillary claim is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. On the grounds indicated in its reasoning, the lower court: (a) determined that the Plaintiffs’ application for the adjustment of the contract amount on February 27, 2014 (hereinafter “instant application for adjustment”) can be deemed legitimate application for the adjustment of the contract amount for the extended construction period for the extension of the contract period by the fourth number of vehicles; and (b) accepted part of the Plaintiffs’ preliminary

2. However, we cannot accept the judgment of the court below for the following reasons.

A. Article 21 of the former Act on Contracts to Which the State is a Party (amended by Act No. 1739, Jun. 9, 2020; hereinafter “State Contracts Act”) and Article 69(2) of the Enforcement Decree of the State Contracts Act provide that long-term continuing construction contracts under Article 21 of the former Act on Contracts to which the State is a Party shall be concluded separate contracts concerning the total construction cost and total construction period, and shall not be in the form of concluding contracts by each business year, and shall be recorded additionally with the total construction cost and total construction period when concluding the first construction contract for the first year. The term “general contract” refers to an ordinary agreement on the total construction cost and total construction period entered into at the time of the conclusion of the first construction contract. Such general contract is not in accordance with the conclusive agreement on the total construction cost and total construction period, but rather according to the conclusion of each annual contract. In other words, the comprehensive contract is determined by the Supreme Court en banc Decision 2019 Decided the total construction price and the total construction period of 2018 contracts.

Meanwhile, even if the cause for the adjustment of the contract amount due to the extension of the construction period has occurred, it does not automatically perform the adjustment of the contract amount by itself, but rather takes place upon the party’s legitimate application for the adjustment of the contract amount against the other party (see, e.g., Supreme Court Decision 2004Da28825, Sept. 14, 2006). Therefore, the application for adjustment of the contract amount on the ground of an extension of the total construction period stipulated in the general contract, rather than the construction period stipulated

In order to recognize an application for adjustment based on the extension of a construction period as an application for the adjustment of a construction amount for the extension of a construction period by the relevant number of vehicles, the application for adjustment of a contract amount shall meet the requirements for the relevant number of vehicles, such as completing the contract amount prior to the execution of the final payment of the construction cost or the payment of the construction cost. In full view of the forms and contents of the application for adjustment such as the extension of construction cost by the relevant number of vehicles, the time of application for adjustment, the method of calculating adjustment amount, etc., the intention of an application for adjustment for extension of a construction period by the number

B. Review of the facts and records acknowledged by the lower court reveals the following facts.

1) Around December 2009, the Defendant entered into the instant contract by adding the date of completion of the total construction work to January 5, 2012 with the joint supply and demand organization comprised of the Plaintiffs participating in the tender of the instant construction project. 2) As the instant construction project was implemented, the construction period and the total construction period by the number of the instant contracts were extended several times. Around January 2013, the 4th construction completion period and the total construction completion date were set on December 31, 2013, but around September 28, 2013, the 4th construction completion period and the total construction completion date were changed to June 30, 2014, respectively. 3) The Plaintiffs entered the instant application for adjustment into an indirect extension of the construction period into the instant application for adjustment to the Defendant on June 27, 2014 (the date of completion of the total construction work).

4) On February 28, 2014, the Plaintiffs received the completion price of each contract by the fourth number of teas, and concluded the fifth number of teas contract on March 2014 and continued the fifth number of teas contract. The fifth number of teas contract was extended on October 15, 2014 by the final completion date.

5) The plaintiffs filed a lawsuit in this case by asserting that the application for conciliation in this case was an application for conciliation of total construction cost due to extension of the total construction period, and that the application for conciliation in this case was not accepted by the court of first instance, and that the application for conciliation in this case contains an application for conciliation of construction amount for extension of the construction period by the type of the type of the type of the type of the type of the type of the type of the type of the type of the type of the type of the type of the type of the type of the type. As such, considering the fact that the extension of construction period stated in the application for conciliation in this case was the total construction period not in this case, the plaintiffs concluded the contract for the type of the type of the type of the type of the type of the type the type of the type of the type of the type of the type of the type of the type of the type of the type of the type of the type of the type of the

Nevertheless, the court below held that the application for the conciliation of this case is a legitimate application for the conciliation of the contract amount with regard to the extension of the overall contract period due to the extension of the overall contract period, even if the contracting party presented only the extension of the overall contract period due to the reasons, the application for conciliation of this case should be interpreted as including the intent of additional cost claim arising from the extension of the overall contract period by the number of teas. In such a case, the court below erred by misapprehending the legal principles on the relationship between the overall contract in a long-term continuing construction contract, the annual contract, and the validity of the total construction period as stipulated in the overall contract, which affected the conclusion of the judgment. Furthermore, the purport of the judgment on the en banc

3. Therefore, without examining the remaining grounds of appeal, the part against the Defendant regarding the conjunctive claim among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan