Han system Chang (Law Firm Chuncheon, Attorneys Shin Tae-young, Counsel for the defendant-appellant)

Defendant

July 14, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 215,758,495 won with 20% interest per annum from August 12, 2008 to the day of complete payment.

1. Basic facts

(a) Claim for the construction price against the defendant of the Dae Chang-gu Co., Ltd. (hereinafter referred to as " Dae Chang-gu Co., Ltd.")

1) On April 12, 2007, the Defendant issued a contract for the construction work for the construction work of an apartment-type factory on the land (hereinafter “instant construction work”) between 150-20 and 2 parcels of land (hereinafter “instant construction work”) at Sinpo-si, Sinpo-si, Sinpo-si, by setting the construction cost of KRW 3,080,000,000 (the construction cost of KRW 2,800,000,000 + value-added tax of KRW 280,000,000,000; hereinafter “instant construction cost”) and the construction period from May 21, 2007 to December 30, 207.

2) At the time of the above contract, the Defendant and the Dae Chang-gu Co., Ltd separately entered into a contract with the construction cost of KRW 5,137,00,000 (cost of construction KRW 4,670,000 + value-added tax of KRW 467,00,000). The said contract is used only for the purpose of submitting it to the government offices (to the public offices and tax offices). On the other hand, the Dae Chang-gu Co., Ltd agreed to additionally receive value-added tax and value-added tax of KRW 187,00,00 (value-added tax of KRW 467,00,000 - KRW 280,000) from the Defendant.

3) On June 10, 2008, pursuant to the construction contract of this case, the Presidential Decree of the Republic of Korea completed a factory and delivered it to the Defendant. The Defendant was paid KRW 2,803,000,000 as the construction price of this case.

B. The Plaintiff’s claim for the construction cost of the subcontracted work for the period of the work

1) On January 19, 2008, the Plaintiff entered into a contract for construction work with the Dae Chang-gu Office to accept construction cost of KRW 258,500,000 among the instant construction work. On May 20, 2008, the Plaintiff entered into a modified contract to increase the construction cost of the said construction work to KRW 302,50,000 (hereinafter “instant subcontract claim”).

2) On May 30, 2008, the Plaintiff completed the construction work, such as the above title, but as a part of the construction cost did not receive KRW 212,50,000,00, the Plaintiff filed an application for a payment order seeking payment of the said construction cost (Seoul District Court Decision 2008Da2840). On July 1, 2008, the said court ordered the Plaintiff to pay the payment amount of KRW 212,50,000 to the Plaintiff, and the said order was finalized on July 23, 2008.

C. A seizure and collection order for the construction cost of this case

1) On June 23, 2008, the Plaintiff received a provisional attachment on the claim that provisional attachment is to provisionally attach the claim for the payment of the instant construction price to the Defendant and the third obligor’s claim amount of KRW 212,50,000 for the purpose of preserving the instant subcontract claim. The said decision was served on the Defendant on June 30, 2008.

2) On August 6, 2008, upon the above payment order, the Plaintiff transferred the above provisional seizure to the above court 2008TTT 5588, and received the seizure and collection order (hereinafter "the collection order of this case") to collect KRW 215,758,495 (the amount including interest in arrears, etc.) out of the construction price of this case. On August 11, 2008, the instant collection order was served on the Defendant on August 11, 2008.

2. The parties' assertion

A. The plaintiff's assertion

On April 22, 2008, the Defendant agreed to pay the additional construction cost of KRW 200 million to the Dae Chang-chul on August 31, 2008 (hereinafter “instant additional construction cost payment agreement”); thus, the Defendant’s unpaid construction cost of KRW 64,00,000 ( KRW 3,080,000,000 + value-added tax + KRW 187,000,000 + value-added tax + KRW 2,803,00,000 for additional construction cost of KRW 20,000 for the already paid construction cost of KRW 2,803,000,00 for the already paid construction cost).

However, at the above 664,00,000 won, Nonparty 2 remains at the Daejeon District Court's Branch 2008Gahap1087, which was recognized in the Daejeon District Court's Branch 2008Gahap1087, and the Defendant's deposit at the Suwon District Court's Deposit at 9740, September 23, 2008, with the Defendant's deposit at 252,329,867, which was executed a part of the construction price of this case, even if the Defendant deducteds KRW 31,804,03 (664,00,000 - 104,147,485 - 252,329,867). Thus, the Defendant has the obligation to pay the Plaintiff damages for delay at the rate of 215,758,485,29,867, which was calculated on the following day from September 23, 2008.

B. Defendant’s assertion

On September 11, 2008, Tae Chang-gu filed a lawsuit against the defendant for the payment of the construction price as Seoul Western District Court 2008Gahap12118, but was ruled against April 29, 2009. The above judgment became final and conclusive on June 22, 2009, and therefore, the obligation of the construction price of this case against the defendant of the Tae Chang-gu Corporation does not exist any longer.

3. Determination

A. Determination as to whether to recognize the agreement on the payment of the instant additional construction cost

First, as alleged by the Plaintiff, it is reasonable to view whether the Defendant agreed to pay the instant additional construction cost, as alleged by the Plaintiff.

Considering the following circumstances, Gap evidence 3, Eul evidence 11-1, Eul evidence 11-2, Eul evidence 1-2, Eul evidence 1-6 and the whole purport of arguments, i.e., the additional agreement made on April 22, 2008 between the non-party 1 and the defendant, which states that the defendant shall additionally pay KRW 200,000 to the non-party 1 who is not the counter-party 1, and 200,000,000,000, which is not the counter-party 1, the Seoul Western District Court 2008Gahap1218, which filed against the defendant on September 11, 2008, the counter-party 200,000 won was not the cause of claim under the agreement between the non-party 1 and the non-party 209, which was concluded on October 14, 2009.

B. Determination as to whether the construction price of this case remains

Therefore, it is reasonable to view the remaining construction cost of the instant construction cost claimed by the Plaintiff, excluding KRW 200,000,000 according to the agreement on the payment of the instant additional construction cost, as to whether the remaining construction cost of KRW 464,00,000 (cost of construction work KRW 3,080,000 + value-added tax + KRW 187,00,000 in difference - KRW 2,803,000 in the construction cost already paid) remains.

In full view of Eul evidence and the purport of all the arguments, since the defendant can be found to have paid KRW 37,09,570 to the Grand environment, which is the subcontractor of the Tae Chang Chang Construction on behalf of the Grand Construction Co., Ltd., and KRW 116,734,05,05,000 ( KRW 37,099,570 + KRW 116,734,055,000) to Sejong High Complex Co., Ltd., the amount of KRW 153,83,625 ( KRW 37,09,570 + KRW 116,734,055,00) must be deducted from the construction cost of this case. Meanwhile, since the collection amount of KRW 208,104,147,485, which was recognized in the Daejeon District Court case No. 2087, Sep. 23, 2008 against the defendant, the amount of the construction cost of this case should be deducted from KRW 20754,297507.

Therefore, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-hee (Presiding Judge)