The meaning of "claim on Works of Avoidance" under Article 170 (2) of the former Civil Code

The contractor’s claim on the Corporation under subparagraph 3 of this Article does not include the contractor’s claim against the contractor for the return of the amount of the surplus of the Corporation, in so far as the contractor’s claim on the Corporation is merely a creditor.

Article 170 subparagraph 2 of the former Civil Act, Article 163 of the Civil Act

Kim Jong-chul Association Litigation System Kim Jong-soo Association (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant-appellee)

Gangseo-gu (Attorney Lee Chang-sik, Counsel for defendant-appellee)

Gwangju High Court Decision 62Na231 delivered on October 31, 1962

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The Defendant’s agent’s grounds of appeal on objection are examined in sequence.

(1) As to the ground of appeal No. 1, the court below acknowledged the fact that the contract was rescinded between the original defendant and the original defendant by only recording Gap evidence No. 1-6 (the contract agreement for the construction of this case) and Gap No. 2-1 (the notice of cancellation). However, in order to cancel the contract, the original defendant should first set a reasonable period of time and notify the execution of the contract. Second, if the contract was exercised by the contractor before the contract termination date, the plaintiff who is the contractor shall compensate for damages in preference. Further, even though the contract termination date was made on the ground that the defendant had been on the date of completion of the contract, even if the contract termination was made on the ground that the defendant had been on the date of completion of the contract, the court below decided that the contract price for the construction of this case was reached among the original defendant after July 30, 1957 and July 26, 1957, and thereafter, the contract completion date for the construction of this case shall be extended to the defendant 1,500).

I think, according to Gap evidence No. 1-6 and Gap evidence No. 2-1 adopted by the court below as evidence, the time limit for completion of the construction of this case was June 30, 1957. If the contractor fails to complete the construction after the time limit, the contractor may cancel the contract in whole and the defendant did not complete the construction within the above time limit, so it is sufficient to recognize the fact that the plaintiff cancelled the contract in accordance with the above agreement on November 1, 1957. Therefore, the plaintiff's exercise of the above time limit by the court below is not an exercise of the right to cancel the contract in accordance with Article 541 of the former Civil Code, and it is not an exercise of the right to cancel the contract by the contractor in accordance with Article 641 of the former Civil Code, and it is nothing more than an exercise of the right to cancel the contract by the contractor in accordance with the premise that the plaintiff's exercise of the right to cancel the contract can not be exercised within the right to cancel the contract. In addition, it is not justified in the conclusion that the plaintiff's claim 1 to 5 or 1).

In addition, in order to recognize the exercise of the plaintiff's right to rescission as lawful because the contract for work is a bilateral contract, the court below should first consider whether or not the plaintiff has paid the contract.

However, the whole purport of the judgment below is that the Plaintiff had already been in excess of the construction payment at the time of exercising the right to rescind the contract for this case. Therefore, it is the independent opinion of the appellant that the court below did not find out the fulfillment of the Plaintiff’s obligation to pay

(2) As to the ground of appeal No. 2, if the judgment of the court below is true, the claim for the construction payment should be transferred to the Food and Drug Bank with the plaintiff's consent, and the plaintiff, which does not arise thereafter, shall be deemed to have a duty to pay only the construction payment to Food and Drug Bank. However, the court below concluded that the plaintiff, who recognized part of the construction payment as the defendant's representative, paid it to the Food and Drug Bank just, impliedly and Maman. As such, the contract for the construction work at issue is sufficient to recognize the fact that the defendant was not executed while the plaintiff did not intend to do so from 1953 to 12, 1953.

If so, the court below should have known that the plaintiff would not pay part of the construction cost of this case to the Kansan Bank, the transferee of the claim, and the person recognized as the defendant's representative, as the defendant's agent.

However, even if the court below's fact-finding is true, the fact that the plaintiff paid the construction cost on behalf of the defendant is identical to the fact that the plaintiff paid the construction cost on behalf of the defendant. Therefore, if the Food Bank, which is the transferee of the construction cost claims, raises an objection against the plaintiff, it is not possible that the transferee of the construction cost claims, if not known that the Food Bank, which is the transferor of the construction cost claims, has the nature of objection. Therefore, it cannot be said that there was an error of incomplete deliberation or erroneous determination of facts in this case, on the ground that the court below did not find out the fact that it points out the arguments.

(3) As to the ground of appeal No. 3, the court below held that aggregate should be included in the sentence of this case, but this aggregate belongs to the defendant, and thus the right to dispose of it belongs only to the defendant. The defendant has been included in the sentence of this case, which is not yet handed over to the plaintiff. This would be a fact-finding that is not based on evidence unless the parties' arguments were neglected or otherwise. According to the reasoning of the judgment at the time of the original trial, it is natural that aggregate extracted in order to be used in the construction work should be included in the sentence of this case as a result of the cancellation of this construction contract. Thus, if the aggregate is not included in the sentence of this construction work, the defendant is in the position to pay the plaintiff the amount equivalent to the above aggregate, as well as in the position of the defendant, and if the defendant intends to use it in kind favorable to the defendant's collection of aggregate as a result of this decision, the decision of the court below should have an influence on the right of this case.

(4) On the ground of appeal No. 4, the court below, based on Gap evidence No. 4 (Appraisal), and calculated the sentence of the defendant's execution of the restoration work for the building built by the defendant. In general, the article of the Jeollabuk-do Repair Association was stationed in and supervised at the site by the article of the Jeollabuk-do Repair Association and appraised the sentence. Thus, it is not thought that the above appraisal would have been in excess of the amount exceeding 1/4 of the sentence, as stated in the above appraisal statement, and if so, it would have been in violation of our experience rules.

However, the court below, however, did not err in the early stage in which Gap evidence No. 4 was entered, and the argument is nothing more than the collapse of the court below's fact-finding, which belongs to the whole jurisdiction, without any ground.

(5) As to the ground of appeal No. 5, the Plaintiff asserted that there is no excessive payment of the construction cost, since the Plaintiff’s article was paid to the Defendant each time the construction cost was reduced to the lower court, and that there was no excessive payment of the construction cost. The lower court did not err in its judgment on this point.

However, in light of the reasoning of the original adjudication, the lower court should be deemed to have judged the assertion of the arguments in the end, in view of the fact that the Plaintiff is aware that it was higher than KRW 4,287,095 as the construction cost of this case. This is without merit.

(6) On the sixth ground of appeal, the court below asserted that the defendant's mid-term rental fee and interest rate on the bank are of the nature to be borne by the defendant with the testimony of the witness Kim Jong-sung and Park Jong-hee, and that the court below's decision that the reasons for the decision did not state the reasons for the non-disclosure.

I think, even though the court below did not state the reason why the defendant should not bear the fee or interest rate as stated in the reasoning of its decision, it cannot be said that there was an error of law such as lack of reason or incomplete hearing.

Therefore, this paper is nothing more than the German body of the appellant.

(7) As to the ground of appeal No. 7, as seen above, the court below already calculated aggregate prices into the sentence of this Construction without the defendant's permission, and calculated the interest rate on the mid-term rental fee and the bank in the above (7) as well as the charge by the defendant, and calculated the excess amount of the construction costs, which the court below acknowledged by the court below, is erroneous.

However, this paper is a theoretical theory that assumes the above-mentioned arguments that are not reasonable in paragraphs (3) and (6) of the above-mentioned arguments, and there is no violation of the law of evidence collection as to the wife where the court below adopted the evidence No. 3 and recognized the excessive payment of the construction project in this case. Accordingly, this paper is without merit.

(8) As to the ground of appeal No. 8, the three-year short-term prescription under Article 170 subparag. 2 of the former Civil Code shall be deemed to include the obligation of the contractor to claim the return of the excessive amount to the contractor, such as the Plaintiff’s claim. The court below erred by misapprehending the legal principles that the instant claim does not constitute this.

However, it is reasonable to view that a contractor's claim on the construction work under Article 170 subparagraph 2 of the former Civil Code refers only to a claim in the case that the contractor assumes as a creditor, as in this case, does not include a claim for the return of the excess payment of the construction work against the contractor. Therefore, the judgment of the court below that stated the opinion with the party member is just.

(9) As to the ground of appeal No. 9, the court below held that there is no evidence that the plaintiff knew of the fact that there was no obligation to pay the construction cost to the defendant at the time of paying the construction cost of this case to the defendant, and it can be sufficiently recognized in light of the circumstances shown in such records.

However, the fact-finding by the court below relating to the point of issue is lawful and there is no violation of documentary evidence. The issue is merely an independent opinion of the appellant.

(10) As to the ground of appeal No. 10, the court below rejected the judgment on the evidence by rejecting the proof submitted by the defendant as long as it did not specifically express its purport and does not specify it in detail in the case of rejection of the proof submitted by the defendant.

However, even if the court below rejected the counter-proof materials submitted by the defendant in the same manner as the argument, it cannot be said that the judgment on the evidence is correct as it is. This paper is without merit.

The additional appellate brief filed by the defendant is not considered to be filed in the last and last place of the prescribed period.

Accordingly, the grounds of appeal are not sufficient to use one of the grounds of appeal, so this appeal is dismissed, and the costs of appeal are assessed against the losing party.

It is so decided as per Disposition by the assent of all participating judges.

The judge of the Supreme Court (Presiding Judge) of the Republic of Korea shall have the highest leapbal leapbal leaps