2013Da22669 Construction Price

A

B

Seoul High Court Decision 2012Na32333 Decided January 18, 2013

June 27, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

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

1. As to the assertion that the Defendant already paid the construction cost to the Plaintiff

According to the reasoning of the judgment below, on December 15, 2008, the defendant contracted the instant construction work to C Co., Ltd. (hereinafter "C"), and C subcontracted most of the instant construction work to the plaintiff on January 10, 209, and the defendant paid 65,40,000 won to the plaintiff in connection with the instant construction work. In addition, according to the records, the plaintiff in subrogation of C at the court below, the defendant claimed construction cost of KRW 124,00,000 and KRW 188,337,40,000, which had already been paid to the sub-contractor of the instant construction work (the plaintiff paid to the plaintiff as the money of KRW 65,40,000,000, which had been paid by the defendant as the construction cost of KRW 63703,120,000, which had been paid by the plaintiff to the subcontractor, and the defendant did not receive the plaintiff's construction cost of KRW 21,201,2100.

Although the Defendant’s above assertion is acknowledged as the claim for the construction price against the Defendant of C, as alleged by the Plaintiff, it can be interpreted that the Defendant’s payment of the construction price to the Plaintiff should be deducted from the claim for the construction price of this case.

Therefore, the lower court should have deliberated on the existence of the remainder after the Plaintiff paid the Plaintiff to re-subcontractors for the execution of the instant construction project, among the construction cost of KRW 65,40,000 that the Defendant paid to the Plaintiff.

The court below found that the defendant paid KRW 65,40,00 to the plaintiff in relation to the instant construction project, but it was unlawful to decide the defendant's failure to do so.

2. As to the assertion that the Defendant paid the amount of electrical construction to the Seowon Electric Power Construction Co., Ltd.

According to the reasoning of the judgment below, on January 10, 209, the court below acknowledged that the plaintiff re-subcontracted the electrical construction cost of KRW 4,00,00 for the construction work of this case to the Seowon Electric Power Construction Co., Ltd. (hereinafter referred to as the "Seowon Electric Power Construction") and that the defendant separately entrusted K with the construction work of 7,858,00 won and paid 7,858,000 won for the construction cost of this case to K, and included 36,142,00 won, the difference between the claim for the construction cost of this case and the claim for the construction cost of this case. However, in full view of the details of the additional construction cost disbursement and relevant evidence, the defendant asserted that the construction cost to be paid to K does not remain (the preparatory document on December 14, 201), and evidence related to the payment of the construction cost of this case, which is a financial material indicated by the defendant.

The Defendant’s above assertion also can be interpreted as the purport that the amount of the electrical construction payment that the Defendant paid to the Seowon Electric Power Construction Work ought to be deducted from the claim for the construction payment of this case. Therefore, the lower court should have deliberated on the amount of the electrical construction payment that the Defendant paid to the Seowon Electric Power Construction Work and considered whether it can be deducted from the claim

Nevertheless, the lower court’s failure to decide on the Defendant’s above assertion is unlawful.

3. As to the assertion that the defendant paid to E the deduction of the acquisition amount

According to the reasoning of the judgment of the court below, E asserted that it acquired the claim related to the construction of this case from C, and filed a lawsuit against the defendant for the claim for the amount of the transfer money and the claim for damages for delay, and received the judgment citing the claim for the amount of the transfer money and the damages for delay, and accordingly, the defendant paid E the amount of 68630,000 won and damages for delay

Although the Plaintiff and the Defendant dispute over the scope of the construction work performed by each of the instant construction works, it shall be deemed that the instant construction work-related claims against the Defendant acquired by E are part of the claim for construction cost that C may claim payment to the Defendant by bearing and executing the Plaintiff’s expenses. Therefore, it is reasonable to deem that the acquisition amount that the Defendant paid to E is deducted from the claim for construction cost of this case claimed by

Nevertheless, the court below erred in the misapprehension of legal principles as to the object and effect of the assignment of claims and the validity of the assignment of claims, etc., on the ground that the scope of the construction work performed by the plaintiff and the defendant at their own expense cannot be determined, and that the acquisition amount paid by the defendant to E is related to the part of the construction work performed by the plaintiff.

4. As to the Defendant’s assertion of deduction of interest on borrowed money

According to the reasoning of the judgment below, the court below found that the plaintiff and the defendant borrowed money from the plaintiff and used it for construction expenses after borrowing money from the plaintiff due to the shortage of funds necessary for the construction of the construction of this case and then agreed that the plaintiff will preferentially cover the interest accrued therefrom; the defendant paid 250 million won from U around February 8, 2009 to 30 million interest per month; and the defendant paid 200 million won from T around September 2009 to 30 million interest per month; and it is reasonable to interpret that the plaintiff bears interest on the loan until the completion of the construction of this case according to the above agreement between the plaintiff and the defendant. Since the registration of preservation of ownership was completed on April 8, 2010 under the name of the defendant and the plaintiff paid 64 million interest to T and V from June 8, 2010 to 64 million interest, the plaintiff should bear the above construction price bonds.

However, even according to the interpretation of the court below as to the agreement between the plaintiff and the defendant on the burden of interest on the loan amount between the plaintiff and the defendant, the plaintiff bears interest accrued from the above loan date to April 8, 2010, and the defendant does not bear only the interest actually paid to the creditor during that period. According to the evidence adopted by the court below, the defendant can be found to have paid interest exceeding 64 million won to U, T and V from June 17, 2009 to October 19, 2010. Thus, the court below should have deliberated on the amount of interest accrued from the loan amount actually paid by the defendant to April 8, 2010, and deducted it from the claim for the construction payment of this case.

Nevertheless, the court below erred by misapprehending the legal principles on the interpretation of the agreement between the plaintiff and the defendant on the burden of interest on the loan and the payment of interest on the loan between the plaintiff and the defendant that the defendant actually paid the interest after the above borrowing date and April 8, 2010.

5. As to the assertion regarding the cost of early construction works and labor

According to the reasoning of the judgment below and evidence adopted by the court below, among H on December 1, 208 and the construction work of this case, the plaintiff entered into a sub-subcontract of this case (hereinafter referred to as the "sub-subcontract of this case") with 10 billion won, which includes ① after the safety diagnosis of 5th floor, ② reinforced concrete of this case, ③ water tanks and storage 1st floor, ④ toilets and partitions were installed on the 1st to 6th floor, ⑤ construction period for each actual 1st, 2008 to 309, and the construction cost of this case should be deducted from 6th, 400,000,000 won, and the plaintiff did not clearly claim that the construction cost should be deducted from 8th, 200,000 won, including the above sub-subcontract of this case to 60,000 won.

When calculating the construction cost that has been paid or is to be paid to H, the calculation of the construction cost should have been made in accordance with whether the construction cost is not double-calculated.

Nevertheless, the lower court’s failure to make a determination on the Defendant’s aforementioned assertion, which included the construction cost of KRW 150,000,000 and KRW 7,844,00,00 for the construction cost incurred by the Plaintiff, based only on the language and text of the re-subcontract in this case, as it is on the claim

6. As to the Defendant’s assertion of deduction of the cost of housing construction in Korea, which the Defendant settled with N

According to the reasoning of the judgment below and the evidence admitted by the court below, the plaintiff re-subcontracted to N on April 7, 2009 as "the construction period of interior wooden works during the instant construction works from April 1, 2009 to May 30, 2009", and "18 million won", and the above construction price was settled directly with N., and the fact that the re-subcontract was concluded between the plaintiff and H and the fact that its implementation was suspended on January 2009 are as mentioned above. According to the records, the defendant, at the first instance court, paid or removed the construction works again in accordance with the re-subcontract, and the construction price should be deducted from the claim for the instant construction price (which part of the construction price should be deducted from the claim for the instant construction work after the plaintiff re-subcontract was paid to N. 1, 2009).

Nevertheless, the lower court’s failure to make a determination on the Defendant’s aforementioned assertion, based only on the language and text of the re-subcontract in this case, included the construction cost of KRW 150 million as it is in the claim for construction cost, and is unlawful.

7. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justice Shin Shin Young-young

Justices Lee Sang-hoon

Justices Kim Gin-young