[1] The nature of the contract guarantee certificate issued by the Construction Mutual Aid Association and the subject of such guarantee

[2] The case holding that a contractor's obligation to return an advance payment is subject to a guarantee where a contract concluded under a contract guarantee by a construction mutual aid association is cancelled due to a contractor's fault

[1] The contract guarantee that the Construction Mutual Aid Association issues to the contractor who is a member of the Corporation pursuant to Article 2 subparagraph 6 of the former Construction Mutual Aid Association Act (amended by Act No. 4600 of Dec. 10, 1993) is ultimately a substitute for the contract bond or contract guarantee that the ordinary contractor pays to the contractor at the time of the contract for the construction, which guarantees the performance of the contract for the construction that the contractor shall complete the construction within the contract period agreed upon by the contractor. If the contractor bears the obligation to the contractor due to the reason attributable to the contractor during the contract execution process, the performance

[2] Where a contractor, who is a member of a construction mutual aid association, ordered a construction work from a contractor, received an advance payment, and then delivered the contract guarantee certificate issued by the construction mutual aid association to the contractor, and the contract was rescinded due to a cause attributable to the contractor, the obligation to return the advance payment is deemed to be included in the contract guarantee obligation of the contractor due to the cancellation of the contract due to the contractor's default.

[1] Article 2 subparagraph 6 of the former Construction Mutual Aid Association Act (amended by Act No. 4600 of Dec. 10, 1993); Articles 428 and 429 of the Civil Act / [2] Article 2 subparagraph 6 of the former Construction Mutual Aid Association Act (amended by Act No. 4600 of Dec. 10, 1993); Articles 428, 429, and 548 of the Civil Act

[1] Supreme Court Decision 92Nu15673 delivered on July 27, 1993 (Gong1993Ha, 2429) / [2] Supreme Court Decision 95Da28526 delivered on December 12, 1995 (Gong196Sang, 370)

Taehwa shopping Co., Ltd. (Attorney Park Jong-ok, Counsel for the plaintiff-appellant)

Construction Financial Cooperative (Attorney Doh-won, Counsel for the plaintiff-appellant)

Busan High Court Decision 94Na2824 delivered on October 13, 1994

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

The defendant's attorney's grounds of appeal are examined.

1. On the first ground for appeal

Article 2 subparag. 6 of the former Construction Mutual Aid Association Act (amended by Act No. 4600 of Dec. 10, 1993) provides that "contract guarantee" means a contract bond to be paid by a union to the ordering person in entering into a contract for the contracted work. Article 4(1)2 of the Guarantee Rules of the Defendant Mutual Aid Association provides that the contract guarantee subject to contract guarantee is a contract bond to be paid to the ordering person when a partner enters into a contract for the contracted work. Thus, the contract guarantee letter issued by the Defendant to the contractor who is a partner under the Construction Mutual Aid Association Act is a contract bond or contract guarantee to the contractor at the time of the contract for the construction work, which is ultimately a contract bond paid by the ordinary contractor to the contractor. If the contractor becomes liable to the contractor due to the reasons attributable to the contractor, the contract performance guarantee shall be guaranteed if the contractor becomes liable to the contractor due to the reasons attributable to the contractor, and the contract cancellation shall be included in the obligation to return the advance payment.

In sum, the Defendant’s appeal is in accordance with Article 2 of the former Construction Mutual Aid Association Act and there are bid guarantees, defect liability guarantees, damage guarantees, payment guarantees, balance guarantees, subcontract performance guarantees, and other guarantees in addition to contract guarantees. In light of the fact that the Defendant Mutual Aid Association’s articles of incorporation as a kind of payment guarantee under Article 49 of the former Construction Mutual Aid Association Act provide for advance payment guarantees, the obligation to return advance payment following contract cancellation is not subject to advance payment guarantees, but subject to contract guarantees. However, this is premised on the premise that the subject and contents of the guarantee business in charge of the Defendant Mutual Aid Association do not overlap. However, this cannot be said to be exempted from contract guarantees on the ground that there is no basis for such interpretation, and that the Defendant Mutual Aid Association deals with some of the guarantee liabilities subject to

The decision of the court below with the same opinion is just, and there is no error of law by misunderstanding the legal principles as to the nature and object of contract guarantee such as the theory of lawsuit.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below found that the non-party Jinjin Co., Ltd. was liable to return advance payment to the Plaintiff as a result of contract rescission, and it did not recognize that it had a separate liability for damages. Thus, the argument that the court below acknowledged the non-party company's liability for damages, without any need to further examine it.

3. On the third ground for appeal

According to the records, the non-party new industry corporation and the non-party Daejin Construction Co., Ltd. are merely the guarantor of various obligations to be borne by the defendant's association, such as fees due to receiving a guarantee under the Construction Mutual Aid Association Act from the defendant's association. Since it can be known that the above Daejin Construction Co., Ltd. and the plaintiff are not the performance bond under the construction contract between the above Daejin Construction Co., Ltd. and the plaintiff, it cannot be viewed that the above Daejin Construction Co., Ltd. will substitute for the above Daejin Construction Co., Ltd., and there is no right and duty to claim that the above Daejin Construction Co., Ltd. will perform the above construction work on behalf of the above

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

Justices Chocheon-sung (Presiding Justice)