[1] Criteria to distinguish between the cases where a contract for new construction works was completed and a new construction works was completed but a defect is found in the contract

[2] The case holding that construction of a new building was completed in a contract for construction of a new building

[1] The criteria to distinguish between the failure to complete construction of a new building and the failure to complete construction of a new building are deemed to have completed construction if the last process intended to be interrupted during the course of construction is not completed. However, it is reasonable to interpret that the construction has been completed but it is only a defect in an object if the main structure is to be repaired due to incomplete construction. Whether the last process intended to be completed in individual cases has to be objectively determined in light of the specific contents of the contract for construction of the building in question and the principle of trust and good faith.

[2] The case holding that even if approval for use is not granted for the reason that the distance from the boundary of the second floor, balcony, balcony, and eaves and the adjacent site of the new building does not exceed 30 centimeters, the contractor cut off the part of the first floor stairs and balcony to secure the distance to be kept between the boundary of the neighboring site, but the contractor failed to secure the distance by preventing any further cutting operations on the second floor, and the contractor did not directly move into the construction after preventing the contractor from doing any further construction under the condition that the contractor has left the installation of the boiler, the number of floors, the number of floors, the stoves, the stoves, the stoves, and the stoves, and the contractor was awarded a contract for the new construction of the building, and the construction cost of the above water and so on is merely KRW 1,168,00,000 for the construction cost, and KRW 2,860,000 for the boiler installation cost, and the building was completed by social norms.

[1] Articles 64, 665, and 667 of the Civil Act / [2] Articles 664, 665, and 667 of the Civil Act

[1] Supreme Court Decision 94Da32986 delivered on September 30, 1994 (Gong1994Ha, 2862), Supreme Court Decision 94Da42822, 42839 delivered on February 23, 1996 (Gong196Sang, 1040), Supreme Court Decision 97Da23150 delivered on October 10, 1997 (Gong197Ha, 3435)

Plaintiff (Attorney Yang LLC et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim principal-type et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na33834 delivered on August 19, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. The criteria to distinguish between the failure to complete construction of a new building and the failure to complete construction of a new building are deemed to have been completed if the last process intended to be interrupted during the course of construction is not completed. However, it is reasonable to interpret that the construction is completed when the main structure is to be repaired due to incomplete construction, and it is only a defect in the object but also a defect in the building under social norms. Whether the last process intended to be completed in individual cases has to be objectively determined in light of the specific contents of the contract for new construction of the building in question and the good faith principle (see, e.g., Supreme Court Decisions 94Da32986, Sept. 30, 1994; 94Da4282, 42839, Feb. 23, 1996).

As the court below has duly confirmed, even if the use of the building of this case was not approved on the ground that the distance from the boundary of the second floor, balcony, and the eaves and the adjacent site of the building of this case does not exceed 30 centimeters, the part of the first floor stairs and the balcony was cut off in order to secure the distance between the boundary of the neighboring site. However, the part of the stairs and the balcony of the second floor was unable to secure the distance by preventing the defendant from performing the cutting operations, and the defendant was left with the installation of the boiler, the second floor water, the water supply, the sprink, the sprink, the sprink, the sprink, etc. of this case was occupied directly after the defendant prevented the construction, and the plaintiff was awarded a contract with the 101,696,720 won for the new construction of the building of this case. The construction cost of this case such as the above water was a gold 1,168,000 won, and gold 2,80,000 won for the building of this case.

The ground of appeal states that the plaintiff promised the completion and completion inspection of the building of this case, and that the plaintiff cannot claim the payment of the construction cost to the defendant, since the plaintiff agreed to pay the construction cost after the completion of the construction work and the completion inspection by the tenant was selected and concluded, the plaintiff cannot claim the payment of the construction cost. However, according to Article 11 of the contract document prepared between the plaintiff and the defendant, the plaintiff is responsible for the completion inspection after completion of the construction work, but the defendant is entitled to preferentially pay the construction cost regardless of Article 11 of the contract document, so the construction cost shall be paid to the plaintiff when the plaintiff completed the construction work. Thus, the defendant cannot refuse the payment of the construction cost because it did not undergo the completion inspection, and according to Article 8 of the contract document, the defendant should first pay the purchase cost by concluding the lease contract after completion of the construction, but if the defendant moved into the construction after the completion of the construction work, the plaintiff could not refuse the payment of the construction cost due to the failure of the lease contract.

The decision of the court below is justified in rejecting the defendant's assertion that the construction of the building of this case was not completed because it is somewhat different from its reasoning, but it is not possible to obtain approval for use of the building of this case, and it cannot be said that there was a violation of the rules of evidence, misunderstanding of the legal principles, or a violation of the reasoning, as

2. According to the reasoning of the judgment below, the court below rejected evidence consistent with the purport that it was impossible to obtain approval for use of the building of this case due to the plaintiff's mistake, and based on the opposing evidence, the defendant completed a design before entering into the contract for construction of the building of this case with the plaintiff, and obtained a building permit. The plaintiff started to remove the building of this case on July 27, 1993 and started to destroy the building from the right bottom of the adjacent site boundary fence, and on the 30th of the same month, the defendant requested the Korea Cadastral Corporation to conduct a survey on August 1 of the same year. The defendant stated that the non-party who is the number of trees located on the side of the plaintiff as soon as possible indicate a red paint, and this is the boundary line between the building site of this case and the building site of this case. The non-party was at a distance to be set up on the basis of its indication, and the non-party was not in violation of the rules of evidence selection or the records.

If the facts are identical, the above defects of the building in this case are attributable to the order of the defendant, who is the contractor, and thus, the plaintiff cannot be held liable for such defects.

The court below's reasoning is somewhat inappropriate, but it is reasonable to conclude that the plaintiff cannot be held liable for failure to keep the above distance. Therefore, the ground of appeal pointing this out is rejected.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)