2011 Gohap5796 completed portion

1. B, and C, the joint management proposal of the rehabilitation debtor A company;

2. Incorporated Construction Company;

Ulsan Metropolitan City

January 30, 2013

February 20, 2013

1. The defendant,

(a) Payment of the amount of KRW 68,265,64, out of the amount of KRW 862,99,784 and the amount of KRW 658,265,64, to B and C as joint managers of the Plaintiff Debtor Rehabilitation and Debtor Company A, shall be made at the rate of KRW 5.66% per annum from February 1, 2011 to September 6, 2011; KRW 5.76% per annum from May 10, 2011 to September 6, 2011; and KRW 20% per annum from the following day to the date of full payment;

B. As to KRW 829,156,656 and the above money, 632,451,306 out of KRW 829,451,65 and the above money shall be paid 5.66% per annum from February 1, 2011 to September 6, 2011; the remainder of KRW 196,705,350 per annum from May 10, 201 to September 6, 201; and 5.76% per annum from the following day to the date of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Status of the parties

1) On May 28, 2009, A Co., Ltd. (hereinafter referred to as the “A”) and the Plaintiff Sam Young General Construction Co., Ltd. (hereinafter referred to as the “Y Young Construction”) divided the construction parts from the Administrator of the Supply Administration on May 28, 2009 into A 51% of the building and sub-designated branch construction of Ulsan Foreign Language High School Teachers (hereinafter referred to as the “instant construction”) and 49% of the respective shares and receives contracts.

2) The Defendant is an end-user institution that is obligated to pay the price for the construction contract concluded by the Administrator of the Public Procurement Service pursuant to Article 2 subparag. 4 and Article 5-3 of the Public Procurement Service Act.

3) On May 12, 2011, A received a decision of appointment of B and C, a joint management entity, as the Gwangju District Court 2011 hap12 (hereinafter referred to as “Plaintiff’s promotion,” in addition to the A and C construction).

B. The said contract for construction works was modified on several occasions from May 28, 2009 to May 28, 2009, the construction cost of KRW 23,797,660,000 as at the time of the initial contract, and from May 28, 2009 to September 20, 2010, the construction period of KRW 25,560,422,00 on November 3, 2010, and the construction period of KRW 25,560,42,00 on May 28, 2009 to December 17, 2010 (hereinafter “instant construction contract”).

C. On September 8, 2010, when the construction of the instant case was in progress, an accident that collapses in two parts among the wall 2 retaining the south-side reinforcement soil (hereinafter “the instant retaining wall”) constructed by the Plaintiff on September 8, 2010 (hereinafter “the instant accident”).

D. On October 13, 2010, the Defendant requested the Non-Party Korea Agency for a thorough safety inspection of the instant accident. The safety inspection conducted construction on the ground that the instant reinforced wall was designed to prevent the design standard from meeting the design standards, and that the instant reinforced wall was collapsed due to the impact of groundwater, surface water, etc. in such a state.

E. Meanwhile, the Plaintiffs received part of the advance payment and the 1-7-time progress payment and the 8-time progress payment with respect to the instant construction project as indicated below. The Plaintiff’s side completed the completion inspection on January 14, 201 and claimed KRW 2,790,716,950 for the 8-time progress payment to the Defendant. The Defendant paid KRW 1,500,000 to the Plaintiff’s side on February 1, 2011 on the ground of the instant accident, and did not pay the remainder of KRW 1,290,716,950 with the Plaintiff’s consent to the reservation of payment. The Plaintiff’s side completed the completion inspection on April 8, 201, and claimed KRW 401,439,490 for the 9-time progress payment to the Defendant on May 2, 2011. The Defendant did not pay the entire amount.

A person shall be appointed.

F. Article 39 and Article 41 of the General Conditions of the instant construction contract provides that an end-user institution shall, with respect to the payment of the price of the price of the flag, determine the price of the flag according to the inspected contents within seven days from the date of completion of the inspection and pay it to the other party to the contract. If the other party to the contract claims the payment of the price after the date of completion of the inspection, it shall pay it within seven days from the date of receipt of the request. If the other party to the contract fails to pay the price by the due date of payment, the unpaid

(g) Loans interest rates among the weighted average interest rates of the Bank of Korea Statistical Monthly Deposit Bank on February 201 are 5.66% on February 201 and 5.76% on May 201.

[Reasons for Recognition] Unsatisfy, Gap 1-5 evidence (including each number), Eul 4, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiffs' assertion

As to the completion portion of the instant construction work, the Plaintiff’s side performed construction work according to the design and completed the inspection, the Defendant is obligated to pay the Plaintiffs the amount of 1,290,716,950 won not paid for the completion portion eight times, 401,439,490 won for the completion portion nine times, and damages for delay thereof.

B. The defendant's argument

1) The instant accident was caused by the wrong design and construction of the retaining wall of the instant reinforced soil. The instant reinforced earth retaining wall of the instant case was based on the Defendant’s first contract, but, thereafter, the Plaintiff, the contractor, revised the design, and collapsed in the part constructed in accordance with the revised design. Therefore, the instant accident’s liability is on the Plaintiff’s side.

It is recognized that the part of the relevant construction should be completed, and as long as the restoration and reinforcement work is not performed because the relevant construction has any defect, such as the collapse or the risk of additional collapse, etc., it cannot be deemed that the completed construction is not completed. Thus, the defendant has no progress payment to pay the defendant more because the original level already paid by the defendant is sufficient to meet the identity of the construction executed by the plaintiff.

2) Even if the family flag portion is recognized, the Plaintiff and the Defendant agreed to withhold payment for the completion of the instant reinforced soil retaining wall until the Plaintiff’s side implements the restoration work, and the Plaintiff’s side did not perform the restoration work. As such, the Defendant did not have any obligation to pay the progress payment.

3. Determination

A. Determination on the cause of the claim

1) If the Plaintiff did not take into account the instant accident, the part equivalent to KRW 2,790,790,716,950, and KRW 401,439,490 for the nine-time progress payment during the instant construction project does not conflict between the parties, and barring any special circumstance, the Defendant is obligated to pay the Plaintiff’s share of the eight-time progress payment and the nine-time progress payment pursuant to the instant construction contract.

2) Accordingly, the Defendant asserted that the retaining wall of this case was collapsed on the ground that the Plaintiff’s fault or the Defendant was not attributable to the Plaintiff, and that the retaining wall of this case was not completed unless the Plaintiff’s restoration and reinforcement work was conducted, and that it did not dispute the Plaintiff’s claim for payment for the completed portion of the retaining wall of this case.

The following facts can be acknowledged in full view of Gap evidence 1 to 6 (including paper numbers), Eul evidence 1 to 9, the fact inquiry results of this court concerning the Ulsan National University Construction Environmental Technology Research Institute, and the witness Eul's testimony, and the purport of the entire arguments in this case.

A) Among the instant construction works, the design sector was contracted by the non-party E Comprehensive Certified architect Office Co., Ltd. (hereinafter referred to as the "Co., Ltd."), and the supervision section was subcontracted to the non-party, Dongnam Comprehensive Supervision Corporation’s architect office (hereinafter referred to as the "Dongnam Comprehensive Supervision Corporation"). Meanwhile, the E General Certified architect subcontracted the civil engineering part of the entire design to the non-party, YBS Co., Ltd. (hereinafter referred to as the "YBS") and re-subcontracted the design of the part of the instant reinforced retaining wall to the non-party, YBS Co., Ltd. (hereinafter referred to as the "YBS").

B) On May 28, 2009, the Plaintiff received design drawings, specifications, and ground investigation reports prepared by E General architectural firms from the Defendant. According to the above design drawings, the retaining wall of this case is three parts, each of which is composed of several parts. The retaining wall height is 6.7m, the retaining wall height is 10.1m, the retaining wall height is 10.7m, the upper part is 4.7m, the retaining wall height is 6m, the horizontal direction of the third part is 6m, and the horizontal direction of the third part is 6m, and the horizontal length of that (e.g., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e. the e.

C) On July 20, 2009, the Plaintiff’s side requested the Korea Quality Laboratory to conduct the ground survey on the instant construction site, separate from the ground survey report received from the Defendant, and the result was different from the ground survey result received from the Defendant. (iii) On August 6, 2009, the Plaintiff’s side reported the fact to the Dong-nam General Dogwon Corporation. On September 2, 2009, the Dongnam General Supervision Corporation reported the fact to the Defendant on the safety of the construction of the reinforced retaining wall in accordance with the original design of this case. As such, the Plaintiff’s side, the Defendant, and the Dong National Foundation supervised the Plaintiff on several occasions from August 8, 2009 to September 7, 2009.

D) On September 11, 2009, the Plaintiff’s side finally subcontracted the original design of the instant reinforced earth retaining wall to the Habbbbs that performed the actual designer, thereby modifying the instant original design.

In comparison with the original design, the length of the 3rd unit and the gye laid underground at the same place has been increased from 6m to 11m each. In addition, the gradient of the cutting slope of the cutting slope has been fully altered, and the separation distance between the building of the school and the retaining wall of the reinforced soil has been increased, and the revised design was made to improve safety (hereinafter referred to as the "the revised design of this case").

E) On December 1, 2009, the Defendant sent to the Dongnam Comprehensive Supervision Corporation a reply to the positive report as to the result of the review of the change of the wall retaining wall of scamb and reinforced soil, and the above reply was ① as to the review of the supervision group on the change of the wall design of the cutting surface of the construction work of this case and the retaining wall of scambling and reinforcement soil, and ② as to the change of the plan thereafter, the Defendant notified the purport of changing the retaining wall of scamb and reinforcement soil to design it, and ② as to the change of the plan thereafter, it is required to send a letter of structural review of the s

F) On December 20, 2009, the Plaintiff completed the instant reinforced soil retaining wall construction.

G) On September 8, 2010, there was an accident that collapses in the second part of the reinforced earth retaining wall of this case (the foregoing accident).

H) Considering the load required for each part of the retaining wall in designing the retaining wall of this case, the stability of the retaining wall can be ensured by designing the size and size of the third unit, which is the lowest part of the retaining wall, and the size of the upper part, small size of the retaining wall. However, the original design of this case could not be ensured stability because it was less than the size and length of the third unit of the lowest part, and the length of the gyd and less than the second unit.

I) When designing a three-dimensional reinforced retaining wall, the original design of this case should be taken into account the interaction between the reinforced earth and bodies, but the original design of this case is not designed as a multiple-style retaining wall, and it is assumed that the simple retaining wall of an independent body has been accumulated with three floors, and a stability review was conducted on each part of the earth and sand of the reinforced retaining wall. As a result, when examining the stability of the reinforced earth and sand at the bottom, it did not take into account the load affecting the upper part, thereby making an error in overall assessment of the safety of the reinforced earth.

(j) Although the stability of the 3rd group, such as the size and length of the 3rd group of the 3rd group and the increase in the length of the 3rd group in the instant revised design, the safety of the 3rd group was increased, the 3rd group was not designed as a complex retaining wall in the instant revised design, and the 1st group was accumulated in the 3rd group instead of designing each of the parts as a complex retaining wall in the instant

(k) According to the construction specifications of the retaining wall of the instant reinforced soil, aggregate in which the entrance level of 30cm or less is less than 30cm is used, but in fact, aggregate in 35cm or less was used.

However, the use of aggregate not exceeding 30cm with entrance was not only the basic date of its own specifications but also the general standard of design, but also the result of the test conducted by the Korea Infrastructure Safety Corporation on the retaining wall of this case.

According to the above facts, it is reasonable to view that the collapse of the retaining wall of this case was in violation of the design standards for safety, such as, without considering comprehensively the load required for each unit, and each unit of the unit of the unit of the building, (1) in the case of a contract by separating the design and the construction, the contractor performs contractual obligations when the construction is executed in accordance with the design drawing provided by the project owner; (2) the Plaintiff demanded the revision design; (3) the Plaintiff’s request for the revision design was in accordance with the ground survey conducted by the Defendant; (4) the Plaintiff’s demand for the revision design was necessary for safety as the result of the geological survey conducted by the Plaintiff was different from the ground survey conducted by the Defendant; (3) the stability of the cutting wall of the cutting wall of this case and the cutting wall of this case was increased; and (4) the Plaintiff’s request for the revision design of the retaining wall of this case, which was the original designer, was also considered to have decreased in the size of damage in the time of the accident; and (4) the Defendant did not individually have any reason for the design reinforcement of the retaining wall of this case.

3) Sub-determination

As to the instant accident, the Plaintiff did not recognize the cause attributable to the Plaintiff, as seen earlier, so long as the Plaintiff’s side performed the construction work up to the portion equivalent to the 8,9-time progress payment during the instant construction work, the Defendant is obligated to pay the unpaid portion and the 9-time progress payment, and the damages for delay therefrom, out of the 8-time progress payment, unless there

B. Judgment on the defendant's defense, etc.

1) Defenses concerning the eight-time progress reserve agreement

Around December 15, 2010, the Defendant concluded an agreement with the Plaintiff to implement the instant reinforced soil retaining wall restoration work, jointly and severally, by bearing the Plaintiff’s expenses in full with respect to the instant accident on the part of the Dongnam General Supervision Corporation and the Defendant. Around December 15, 2010, the Defendant agreed between the Plaintiff and the Defendant to withhold payment of KRW 1,290,716,950 out of the 8th completion payment until the restoration work is performed. The Defendant did not have a duty to pay the 8th installment payment reserved to the Defendant.

(3) On September 15, 2010, after the instant accident, the Plaintiff, the Defendant, and the Donam Comprehensive Supervision Corporation: (a) requested a reliable institution to conduct a precise safety diagnosis on September 15, 2010 with respect to the cause and responsibility of the accident; (b) on December 15, 2010, the expenses for the precise safety diagnosis were to be determined by the negligence of the Defendant as revealed in the safety diagnosis; (c) on December 15, 2010, the Dong Southern Comprehensive Supervision Corporation sent the Defendant a report on the plan for the implementation of the supplementary works in the Ulsan Foreign Language High School Accident" to the Defendant as of December 15, 2010; (d) on the said report, the said report was prepared by the Plaintiff and the west Comprehensive Supervision Corporation as of December 8, 2010; (e) on the 19th anniversary of the fact that the Plaintiff and the west Integrated Supervision Corporation are jointly and severally required to implement the works; (e) on the 6th anniversary of the main text of the instant report attached to the Plaintiff’s.

However, in light of the language and text of the above notice of restoration work, it is merely merely to inform the defendant that there was an agreement between the plaintiff and the Dongnam Comprehensive Supervision Corporation on the same contents as the statement, and it cannot be deemed that the plaintiff entered into an agreement on restoration work with the defendant (in view of the expression of "dominative responsibility", it is difficult to deem that the plaintiff entered into an agreement on restoration work with the defendant as an intention to bear legal obligations against the plaintiff's death). There is no evidence to acknowledge that the agreement on restoration work was entered into between the plaintiff and the defendant. Therefore, the defendant's defense that the plaintiff agreed to withhold payment until the time of the implementation of restoration work is performed is without merit, on the premise that there was an agreement on restoration work agreement.

Meanwhile, based on the written consent of this case, even if there is an agreement to withhold payment of KRW 1,290,716,950 out of the eight-time progress payment until the execution of restoration work, as alleged by the defendant, the plaintiffs and the defendant agreed to enter into the contract to modify the construction work of this case on March 6, 2012 as stipulated in paragraph (3) of the special agreement and set forth above 8 and nine-time progress payment according to the conclusion of the lawsuit of this case. Thus, it is reasonable to view that the aforementioned reserved agreement was replaced by the above modified special agreement and reversed.

Therefore, the defendant's defense of the reservation agreement for payment for the eight-time progress payment is without merit.

2) Defenses concerning nine-time progress payments

As long as the Plaintiff denies the conclusion of the instant reinforcement soil retaining wall restoration agreement and refuses to implement restoration works under the agreement, the Defendant asserts that the Defendant refuses to perform the duty of prior performance as the prior performance obligor, because there is a ground for making it difficult for the other party to perform his/her obligation under Article 536(2) of the Civil Act.

As seen earlier, it is not recognized that the Plaintiff and the Defendant entered into an agreement on the recovery of the retaining wall of this case between the Plaintiff and the Defendant. Thus, the Defendant’s above assertion premised on this is without merit without examining it.

4. Conclusion

Then, the defendant is obligated to pay 1.6% annual interest rate of 1.6% from the above 8,290,716,950 won 51% (as for the above 6.6% interest rate of 1.6%, annual interest rate of 204,734,140 won, annual interest rate of 9.6%, annual interest rate of 1.6%, annual interest rate of 96%, annual interest rate of 1.6%, annual interest rate of 96%, annual interest rate of 1.6%, annual interest rate of 1.6% from the above 1.65%, annual interest rate of 1.6%, annual interest rate of 95%, annual interest rate of 1.6% from the above 1.6%, annual interest rate of 95%, annual interest rate of 1.6% from the above 1.6% interest rate of 9%, annual interest rate of 1.6%, annual interest rate of 9% from the above 1.6% interest rate of 1.6%

The presiding judge, assistant judge and assistant judge

Judges Senior Professor

Judges Preferential-hun

1) The design of the instant construction is designed by the non-party E-General architectural firm, and the supervision part is designed by the non-party E-General architectural firm, Dongnam Comprehensive Supervisory Corporation

The contract was awarded.

(ii) Reinforcements and soil yarns laid underground at regular intervals, of steel, wood, plastics, synthetic fibres, etc.) with high seal capacity on earth;

The stability of filled-up body by reducing earth pressure (it is difficult to transform earth filled-up by upper and lower parts, etc. into the direction of a crossing) using the reflective force of this objection.

the retaining wall that increased.

3) The inside finishing angles of ground were 14 to 19 test results on the Plaintiff’s side, and the Defendant’s test results were 33-35.

4) Amnesty surface refers to the part of the retaining wall of the instant reinforced soil, and the cutting surface refers to the cutting surface of the cut surface. The cutting surface refers to the cutting surface of the cut surface.

5) The following soil, for which reinforced materials are laid underground:

6) 1,290,716,950 won ¡¿ 0.51, and less than Won.

7) The average loan interest rate of financial institutions, as seen earlier, on February 2, 2011, the Bank of Korea Statistical Monthly Deposit Bank loan interest rate.

8) Loan interest rates of the Bank of Korea Statistical Monthly Deposit Bank of Korea on May 2011 above, as the average loan interest rates of financial institutions.

9) 1,290,716,950 x 0.49 x less than Won.

10) The average loan interest rate of financial institutions, as seen earlier, on the statistical monthly average of the Bank of Korea and on February 2, 201

11) Loan interest rates of the Bank of Korea Statistical Monthly Deposit Bank of Korea on May 2011 above, as the average loan interest rates of financial institutions.