(영문) 대법원 2015.11.12.선고 2015다39968 판결

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

For the reasons indicated in its reasoning, the lower court determined that the Plaintiff and the Defendant were the parties to the contract for the instant construction work and the instant additional construction work, on the ground that, while entering into a construction contract with the Defendant, who was the owner of the construction on July 1, 2011, under which the Plaintiff agreed to receive a contract for the extension of the part of the instant original construction work, which was not included in the scope of the instant original construction contract, and again, concluded an agreement with the Defendant to additionally receive a contract (hereinafter referred to as the “instant additional construction contract”) with regard to the alteration work for the extension of the part of the residential map, which was not included in the scope of the instant original construction contract.

The allegation in the grounds of appeal to the effect that the contractor of the original construction contract of this case is not the Plaintiff is not the Plaintiff, which is a legal appellate court, and thus, cannot be a legitimate ground of appeal (see, e.g., Supreme Court Decision 2005Da26550, Jul. 22, 2005). In addition, even if examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the confirmation of the contracting party or by exceeding the bounds of the principle

2. As to the construction cost under the instant additional construction contract among the grounds of appeal No. 2

A. The principle of free evaluation of evidence, which is declared by Article 202 of the Civil Procedure Act, means that it does not need to be bound by formal and legal evidence rules, and does not allow a judge’s arbitrary judgment. Thus, the recognition of facts should be in accordance with logical and empirical rules based on the principle of justice and equity, based on the evidentiary evidence duly admitted through the evidence examination process. The fact-finding should not go beyond the limit even if it falls under the discretion of the fact-finding court (see, e.g., Supreme Court Decision 2009Da7198, 77204, Apr. 13, 2012).

B. The lower court: (1) (1) although the Plaintiff performed construction works as indicated in the reasoning of the lower court under the instant original construction contract and the instant additional construction contract, it did not receive KRW 16 million out of the construction cost of the instant original construction contract and did not have received any money paid as the construction cost of the instant additional construction contract; (2) However, the Plaintiff recognized that the Plaintiff issued and reported a tax invoice in the name of the corporation to which the Plaintiff belongs with respect to the construction cost of the instant additional construction contract, which included the supply price of KRW 62,400,000, value added tax 6,240,000, in the name of the corporation to which the Plaintiff belongs; and (2) on the grounds as indicated in its reasoning, recognized that the Defendant, in relation to the instant additional construction contract, was liable to pay the Plaintiff the amount for which the said tax invoice was issued and the amount equivalent to the value-added tax amount that the Defendant claimed thereafter, and determined that the amount that the Defendant paid to the Plaintiff is the amount of the said tax invoice issued and its delay damages.

C. However, even after comparing all the evidence (including evidence Nos. 4 through 7 (each number) and No. 7) adopted by the court below with the records, there is no evidence to find the fact that the plaintiff or the corporation to which the plaintiff belongs issues a tax invoice for the construction price of the instant supplementary public contract.

However, the written application for the change of claim and cause of claim filed by the Plaintiff at the lower court on April 13, 2015 is accompanied by the General Customer Director and Tax Invoice stating the phrase “A evidence No. 5” separately from the evidence No. 5 (each on-site photo) adopted by the lower court, but there is no evidence to prove that the lower court had gone through legitimate evidence examination procedures against the above attached documents.

In addition, according to the above tax invoices, a tax invoice stating the same value of supply as the amount of the tax invoice recognized by the court below as issued in relation to the instant additional construction contract is discovered (No. 151 of the record), but it is clear that Thaiex was issued by the Plaintiff, not by the Plaintiff with respect to the instant additional construction contract, but by the Plaintiff at the time of claiming the price for metal construction work. Moreover, compared with the details of issuance of the tax invoice concerning the instant original construction contract prepared by the Plaintiff, the value-added tax stated in the said tax invoice is part of the value-added tax related to the instant original construction contract stated in the Plaintiff’s claim and the cause of the claim, and ultimately, the said tax invoice is deemed as a tax invoice for the instant original construction contract. Thus, it cannot be deemed as evidence supporting the fact that the tax invoice for the instant additional construction contract was issued by the court below.

Nevertheless, the above adopted evidence alone recognized that a tax invoice for the instant additional construction contract was issued, and based on this, recognized the construction cost of the instant additional construction contract asserted by the Plaintiff, and the judgment below erred by exceeding the bounds of the principle of free evaluation of evidence by admitting the fact without any evidence. The ground of appeal

3. Ex officio determination on damages for delay

Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Act on Special Cases Concerning the Promotion, etc.”) provides that “Where it is deemed reasonable to dispute over the existence or scope of an obligation to perform the obligation to the obligor before a trial court declaring that the obligation to perform the obligation is rendered, paragraph (1) shall not apply to the reasonable extent.” In this context, “where it is deemed reasonable for the obligor to dispute over the existence or scope of the obligation to perform the obligation” refers to cases where the obligor’s assertion is acknowledged to have reasonable grounds for the obligor’s assertion as to the existence or scope of the obligation to perform the obligation. Whether such dispute is reasonable or not is a matter concerning the fact-finding and evaluation by the court concerning the relevant case (see, e.g., Supreme Court en banc Decision 86Da1876, May 26, 1987; Supreme Court Decision 2013Da30356, Sept. 12, 2013).

According to the records, the court of first instance fully accepted the Plaintiff’s claim seeking payment of KRW 82,800,000,000 for the total amount of the construction payment under the original construction contract of this case and the additional construction contract of this case, and the Plaintiff filed an appeal, and the Plaintiff added the Plaintiff’s claim seeking payment of KRW 27,013,80,00 in aggregate of the value-added tax on each construction payment under the original construction contract of this case and the additional construction contract of this case during the course of the original lawsuit. The court below partially accepted the Defendant’s appeal on the unpaid construction payment which the court of first instance accepted in its entirety, and reduced the amount of the first instance judgment’

According to the above facts, as long as the court below partially accepted the defendant's appeal on the unpaid construction price and reduced the cited amount of the first instance court, the defendant's dispute over this part can be deemed to have a reasonable ground. Furthermore, as long as the court below partially admitted the part of the value-added tax claim, it can be deemed that there exists a reasonable ground in the defendant's dispute on this part.

Nevertheless, the lower court, contrary to this, applied the interest rate of KRW 22,173,80,00 for the remaining principal amount of KRW 82,80,00,00, which was cited in the first instance court among the total principal amount of KRW 104,973,80,00 as cited in the lower court, on the grounds that the Defendant’s defense is reasonable and reasonable.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of application of Article 3 (2) of the Litigation Promotion Act.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.