2016 Gohap 575138 Lawsuits for the claim for warranty bond, etc.

Bosco Construction Co., Ltd.

1. Specialized Construction Financial Cooperative;

2. A stock company;

June 1, 2018

July 20, 2018

1. The Plaintiff:

(a) Defendant A Co., Ltd.: KRW 2,356,938,140 and the said money;

1) As regards KRW 941,294,712, from December 17, 2016:

2) As regards KRW 162,428,640, from April 7, 2017:

3) As regards KRW 1,253,214,788, the respective ratio of KRW 1,253,214,788 shall be from March 15, 2018; 6% per annum from July 20, 2018; and 15% per annum from the following day to the date of full payment.

the amount of money calculated by the

B. Defendant Specialized Construction Mutual Aid Association is jointly with Defendant A Co., Ltd. and the Plaintiff indicated in paragraph (a) above.

Of KRW 2,356,938,140, 659,861,903 and 65% per annum from December 7, 2016 to July 20, 2018, and 15% per annum from the following day to the date of full payment.

sub-payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit:

A. Of the parts arising between the Plaintiff and Defendant A Co., Ltd., 40% is the Plaintiff, and 60% is the Defendant A Food Co., Ltd.;

B. Of the parts arising between the Plaintiff and Defendant Specialized Construction Mutual Aid Association, 30% is the Plaintiff, and 70% is the Defendant Specialized Construction Mutual Aid Association:

Each share shall be borne.

4. Paragraph 1 can be provisionally executed.

The Plaintiff

A. As to KRW 3,928,230,234 and KRW 941,294,712 among them, Defendant A Co., Ltd.: (a) from December 17, 2016 to KRW 162,428,640; (b) from April 7, 2017 to KRW 2,824,506,882; (c) the amount calculated at the rate of 15% per annum from the day following the delivery of a copy of the written application for modification of the purport and the cause of the claim as of March 13, 2018 to the day of full payment;

B. The Defendant Specialized Construction Mutual Aid Association, jointly with Defendant A Company, calculated at the rate of 15% per annum from December 17, 2016 to the date of full payment, as the amount of KRW 919,239,844, out of the amount set forth in paragraph (a) above, and the amount of said KRW 15% per annum;

sub-payment.

1. Basic facts

A. Status of the parties

1) 원고는 토목건축공사업, 주택건설업 등을 영위하는 법인이고, 피고 A 주식회사(2012. 8. 1. 'B 주식회사'라는 상호로 설립되어, 2013. 1. 16. 'C 주식회사'로, 2016. 8.20. 현재의 상호로 각 변경되었다. 이하 '피고 A'이라 한다)는 조경식재공사업 및 조경시설물 설치업 등을 영위하는 법인이다.

2) The Defendant Specialized Construction Mutual Aid Association (hereinafter referred to as the “Defendant Mutual Aid Association”) is a corporation established under the Framework Act on the Construction Industry for the purpose of providing guarantee, financing and mutual aid services to the members engaging in construction business.

(b) Subcontract and related guarantee contracts between D and the plaintiff;

1) D is a personal business entity that engages in landscaping business, etc. in the trade name of "E". On December 30, 2010, the Plaintiff entered into a subcontract (the construction amount of KRW 5,481,300,000 and the construction period of KRW 30 to April 30, 2013) with respect to the 'F collective housing construction project (construction project) landscaping project' with the Plaintiff, with respect to the 'F collective housing construction project', that the Plaintiff subcontracts the said construction to D (hereinafter referred to as the "prior subcontract in this case").

2) On December 3, 2012, D entered into a contract for the warranty of defects (the warranty period between November 1, 2012 and October 31, 2014; the guaranteed amount of KRW 162,428,640) with the Defendant Union on the preceding subcontract (hereinafter “the preceding guarantee contract”).

C. Conclusion of subcontract agreements between the Plaintiff and the Defendant A

1) As indicated below, the Plaintiff entered into a subcontract with Defendant A on the condition that the Plaintiff subcontracted landscaping and facility construction to Defendant A as the principal contractor (hereinafter referred to as “instant 1 to 7 subcontract” as the sequence below, and refers to the instant construction works executed under each of the above contracts as “the instant construction works”.

Hycheon-gun District Housing Association in Jincheon-gun, Jincheon-gun, Jincheon-gun, 201, the contract price for the order of contract for the construction of new housing (construction) is 1.465,366,002 on December 3, 2012; 31.9,405,000,000 for the construction of new housing (construction); 6.4,584,763,204 for the construction of new housing; 2004 for the construction of new housing (construction) for the construction of new housing (construction); 2.5,029,013,505 for the construction of new housing (construction); 2.5,000 for the construction of new housing (construction); 3.5,00 for the construction of new housing (construction) for the construction of new housing (construction); 4.250,505,000 for the construction of new housing (construction) for the construction of new housing (construction)

2) At the time of the establishment of Defendant A, the representative director was D, the contractor of the instant preceding subcontract. D transferred the construction business license, etc. held by Defendant A to Defendant A on September 24, 2012, and Defendant A entered into a contract for acquisition of the business including the content that D transferred the construction business license, etc. held by Defendant A to the Defendant A, and Defendant A was liable for the rights and obligations for defect repair, as it was completed, to the construction works within the defect warranty period.

3) The construction site of the instant prior subcontract and the construction site of the instant No. 1 are the same. Defendant A, on October 31, 2012, performed by the Plaintiff, and D, on the instant prior subcontract.

The defendant A consented to the construction work and requested to do so, and the plaintiff consented to it.

D. Conclusion of a warranty contract between the defendant A and the defendant union

1) Defendant A entered into a contract for the warranty of defects regarding the first through seventh subcontract of this case (hereinafter referred to as the “contract for warranty of defects”) with the Defendant Union as set out in the table below.

주계약명보증계약일보증기간보증금액 (원)1인천 F공동주택신축사업(시공) 조경(후속)2013. 8. 8.2013. 7. 1.~ 2015. 6. 30.15,446,5412충북 진천군 G 이전 신축공사(시공) 조경공사2015. 3. 20.2015. 3. 19.~ 2017. 3. 18.331,650,0003울산 H에 있는I지역주택조합 공동주택 신축공사 조경공사2014. 4. 30.2014. 4. 1.〜 2016. 3. 31.147,433,0714부산 수영구 J구역재개발조경공사2014. 10. 16.2014. 10. 10.~ 2016. 10. 9.164,233,1065부산 연제구 K 아파트 조경 공사(식재)2015. 6. 30.2015. 6. 30.~ 2017. 6. 29.141,541,4516부산 연제구 K 아파트 조경공사( 시설물)2015. 7. 31.2015. 7. 30.~ 2017. 7. 29.115,190,5827부산 연제구 K 주상복합(시공) 조경공사2016. 2. 29.2016. 2. 10.〜 2018. 2. 9.25,799,961

2) The terms and conditions of guarantee of the Defendant Union were amended on June 30, 2015, and the new terms and conditions of guarantee were applied from the contract concluded on July 1, 2015. Before the amendment of the Defendant Union and the subsequent terms and conditions of guarantee (hereinafter referred to as the “instant terms and conditions”) are as follows:

Article 1 (Liability for Guarantee) (1) The defendant association (hereinafter referred to as the "association") guarantees the payment of warranty money in accordance with the terms and conditions of the warranty contract as stated in the letter and the terms and conditions. (2) The warranty accident in this terms and conditions means that the contractor (hereinafter referred to as the "contractor") fails to pay warranty money within 15 days after the expiration date of the warranty liability period (the standard of the terms and conditions before the amendment, the change to the terms and conditions within 30 days after the amendment) due to construction in violation of the design documents and other instructions, of the front warranty liability term.Article 4 (Performance Scope of Guarantee Obligations) (1) The deposit to be paid by the Association shall be the amount determined by the amount of expenses actually required for the repair of defects within the coverage of the guaranteed amount as stated in this letter as reasonable or related Acts and subordinate statutes.

D. Occurrence of any defect in each of the subcontract agreements, etc. of this case

1) In relation to the instant subcontract Nos. 1 through 7, Defendant A completed construction, such as landscaping trees and installation of facilities. However, there were a large number of defects in landscaping trees and facilities subject to construction as to each of the above contracts, including construction parts under the instant prior subcontract agreement.

2) Accordingly, the Plaintiff requested repair of the defects related to each of the instant subcontracts from October 29, 2014 to Defendant A on several occasions. However, a large number of defects, such as high-level item (g), etc. (hereinafter referred to as “the instant defects”) have occurred in the construction part concerning the instant subcontract (including the construction part concerning the instant subcontract) and the expenses incurred in repairing the defects are as listed below.

As a result, repair costs (construction site of the previous subcontract of this case) landscaping (construction site) for the new construction project (construction site of the original 1F apartment housing (construction site of this case) 226,415,472G 2,863,360,5153, 131,84,8195, 8195, K apartment landscaping project (construction site) for the new construction project of the first regional housing association of the IF Housing Association of the 104,701,527, 2863,803,803,928,230,2344, 234, 153

[Reasons for Recognition] A without dispute, entry of Gap evidence 1 to 20 (including number ; hereinafter the same shall apply), appraiser L's appraisal result, the purport of the whole pleadings

2. Determination as to the claim against Defendant A

A. The cause and time of the instant defect

1) In light of the following circumstances acknowledged earlier, Gap's evidence Nos. 15 through 20, 23, and Eul's evidence Nos. 1 through 5, the appraiser's appraisal result, and the result of the appraiser's appraisal of this court's appraiser L, which are acknowledged by comprehensively considering the overall purport of the pleadings, the defect of this case occurred within the warranty period of each of the construction works of this case (including construction works under the prior subcontract of this case) due to the error in the construction of defendant A or D, and it is reasonable to deem that the defect of this case occurred within the warranty period of each of the construction works of this case

① Examination of landscape trees is a combination of various factors, such as design factors, such as planting trees highly dangerous to death on the ground of artificial land, error in construction, such as care for handling trees or lack of land conditions, and neglect of management by the managing body, etc., and it is impossible to specify the cause and time in detail among the defects in this case. It appears that the above results were caused by various factors such as the above.

② Since before the expiration of the warranty period, the Plaintiff continuously pointed out any defect, such as the death of landscape trees, damage to facilities, etc., and requested the Defendant A to repair the defect.

③ In the case of trees planted at the first and second construction sites of this case and trees planted at each construction site of this case, those trees referred to in item (g) with the center of a specific species among trees planted at each construction site of this case have occurred extensively. In the case of landscaping trees

It is common that the landscape trees do not proceed with a short-term examination on the sole ground that the landscape trees were neglected to maintain and manage without any defective construction that may hinder growth.

④ Defendant A, upon the Plaintiff’s request, performed the repair of a part of the defect, but still remains and performed the repair work is insufficient to deem that the repair work was complete.

⑤ During the pleadings of the instant case, there was not submitted any material showing specific circumstances to deem that the Plaintiff neglected the management of trees planted at each construction site of the instant case.

2) However, as seen earlier, it is difficult to find out that: (a) the landscape trees test occurred due to complex factors and high-level factors such as error, climate, soil, etc. in the management of the Plaintiff, which is the managing body; and (b) in the case of trees suitable for the south area planted at the construction site of this case, the test rate is higher than other trees planted at each construction site of this case; (c) in the case of specific species of trees (e.g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g., g.

B. Occurrence and scope of liability for damages

1) According to the facts found above, Defendant A as the contractor of each of the instant subcontract,

The plaintiff who is a contractor is obliged to pay the damages in lieu of the repair of defects arising out of the construction parts of each of the subcontract of this case due to the error in construction.

2) In addition, when Defendant A entered into a business transfer agreement with Defendant A on September 24, 2012, Defendant A agreed to assume the responsibility for the repair of defects, including the instant subcontract agreement, as well as the obligation for the repair of defects that D bears. Defendant A requested on October 31, 2012 that “the Plaintiff will take over and undertake the construction work under the instant prior subcontract,” and that the Plaintiff consented thereto.

According to the above facts, it is reasonable to view that Defendant A agreed between the Plaintiff and the Plaintiff to assume the responsibility for defects arising from the construction error in the performance and settlement of the contract of the preceding subcontract in this case. Therefore, Defendant A bears the liability to compensate the Plaintiff for damages in lieu of the defects arising from the construction error in the above D’s construction work under the preceding subcontract.

3) Therefore, the damages in lieu of the defect repair that Defendant A should pay to the Plaintiff is the sum of KRW 3,928,230,234 of the cost of defect repair in the instant defect.

(c) limitation of liability

As seen earlier, the appraisal of this case is likely to include a natural factor or an expanded level of defect as it was conducted from the time when one to six months have elapsed from the completion date of the construction works under each of the subcontract of this case, and it is practically impossible to clearly distinguish it from the part due to the construction error. As seen earlier, the appraisal of this case is likely to act as a cause of defect without any responsibility of the parties, such as design factors or climate, in light of the content and degree of the defect.

Considering that Defendant A’s total liability is unreasonable, and in light of all the circumstances revealed in the argument of the instant case, including the fact that Defendant A performed partial repair upon the Plaintiff’s request, and additionally planting landscape trees, it is reasonable to limit Defendant A’s liability for damages to 60% of the amount recognized in accordance with the principle of equity or the principle of good faith. Therefore, the amount of damages in lieu of defect repair that Defendant A should pay to the Plaintiff is KRW 2,356,938,140 (=3,928,230,234).

D. Sub-determination

Defendant A, as sought by each Plaintiff among KRW 2,356,938,140 and the above money, as to KRW 941,294,712 from December 17, 2016, the day following the delivery of a duplicate of the complaint in this case, and KRW 162,428,640 from April 7, 2017 following the delivery of a written application for modification of the purpose of and the cause of the claim in this case, to KRW 1,253,214,78, the remainder of KRW 1,253,218 from March 13, 2018 following the delivery of the written application for modification of the purpose of and the cause of the claim in this case, is obligated to pay damages for delay calculated annually from March 15, 2018 to July 20, 2018 as well as from the day following the delivery of the written application for modification of the purpose of and cause of the claim in this case.

3. Determination as to the claim against the defendant union

(a) The occurrence and scope of liability for defect repair;

As seen earlier, the Plaintiff demanded the repair of defects due to the occurrence of defects at each construction site of this case, but Defendant A failed to comply with this properly, and there is a defect in this case until now.

Therefore, the defendant union, barring special circumstances, shall guarantee each of the instant contracts and guarantee each of the instant guarantees.

According to the contract, the guarantee creditor is obligated to pay the warranty bond equivalent to the cost of defect repair within the scope of guarantee liability.

B. Determination on the argument of the defendant union

1) Expiration of the statute of limitations

A) Claim by the Defendant Union

Since October 31, 2014, which was the expiration date of the guarantee period of the prior guarantee agreement of the instant case, the Plaintiff submitted an application for modification of the purport of the claim and the cause of the claim to claim KRW 162,428,640 under the instant contract to the court on April 5, 2017, which was two years after the expiration of the guarantee period from October 31, 2014, the Plaintiff’s claim for this part of the claim expired

B) Determination

Article 67(2) and (1) of the former Construction Industry Basic Act (amended by Act No. 12580, May 14, 2014) which was applied at the time of December 3, 2012, which entered into the instant prior guarantee agreement, provides that “a guarantee creditor’s right to a deposit that he/she has against the Financial Cooperative shall be extinguished by extinctive prescription unless he/she exercises the right for two years from the expiration date of the guarantee period.” Thus, the period of extinctive prescription under the instant prior guarantee agreement is two years.

However, the facts that the expiration date of the guarantee period of the prior guarantee agreement of this case was October 31, 2014 are as seen earlier, and that the Plaintiff filed an application for modification of the claim and cause of the claim under the prior guarantee agreement of this case with the court on April 5, 2017, the Plaintiff’s claim against the Defendant Union under the prior guarantee agreement of this case was significant in this court. As such, the statute of limitations expired upon the Plaintiff’s claim against the Defendant Union under the prior guarantee agreement of this case (the statute of limitations expired even if based on December 5, 2016, which is the date for filing the instant lawsuit).

Therefore, this part of the defendant union's assertion is justified.

2) Occurrence of a guaranteed incident

The defendant union stated that "the warranty accident of this case occurred within the warranty period, and the warranty accident of this case occurred within the warranty period of 15 days (or 30 days) from the expiration date of the warranty period of this case is stipulated as "the contractor fails to perform the warranty within the warranty period." The plaintiff asserts that the warranty accident of each warranty contract of this case did not occur since there is no evidence that the plaintiff requested the repair of defects to the defendant A within the warranty period of the warranty period and the defendant A did not perform the warranty.

The defect in this case occurred within the period of defect repair liability and remains in the state where the defect repair has not been performed until now, and the fact that the plaintiff requested the defendant A to perform the defect repair under each of the subcontract in this case from October 29, 2014 to the defendant during the period of defect repair liability is as seen above. In light of the above facts, it is reasonable to view that the guarantee accident under each of the contract in this case has occurred according to the above facts.

Therefore, this part of the defendant union's assertion is without merit.

(c) limitation of liability

In light of the circumstances in consideration of Defendant A’s limitation of liability and all the circumstances revealed in the proceedings of this case, it is reasonable to limit Defendant Union’s guarantee liability to 60% in accordance with the principle of fairness or the principle of trust and good faith. Therefore, the security deposit for repairing defects that the Defendant Union is liable to pay to the Plaintiff is a total of 659,861,903 won as indicated below.

As a result of construction, landscaping (construction), landscaping (construction), 26, 415, 474135, 849, 28415, 4415, 5415, 446, 541D (E), 863, 360, 51518, 716, 30931, 650,0031, 6531, 6531, 650, 6531, 6498, 10597, 10498, 10496, 1057, 397, 10596, 1045, 1963, 1963, 1964, 1975, 1964, 1964, 1965, 294, 397, 1965, 1964, 19648, 1947, 1947, 19467

D. The relationship of each of the Defendants’ liabilities

The Plaintiff’s damage claim in lieu of defect repair against Defendant A and the claim for defect repair against the Defendant Union is a special relationship in which other rights cease to exist if the Plaintiff received repayment from either of the Defendants and achieved the purpose.

E. Sub-committee

The Defendant Union, jointly with Defendant A, is obligated to pay to the Plaintiff 659,861,903 won among KRW 2,356,938,140 as stated in the above 2-D. (d) and damages for delay calculated at the rate of 15% per annum under the Commercial Act from December 7, 2016 to July 20, 2018, which is reasonable to dispute over the scope and existence of the obligation to perform by the Defendant Union, from the day following the delivery of a copy of the complaint in this case, until the day of the decision in this case, and from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and each of the remaining claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Hah For the purposes of taxation

Judges Lee Ho-won