Korea Land and Housing Corporation (Law Firm LLC, Attorneys Shin Hy-hwan et al., Counsel for the plaintiff-appellant)

Construction Financial Cooperative (Law Firm Subdivision et al., Counsel for the plaintiff-appellant)

August 23, 2017

Seoul Central District Court Decision 2016Gahap514409 Decided February 2, 2017

1. Revocation of the part against the defendant exceeding the amount ordered to be paid under the following among the monetary payment portion of the judgment of the court of first instance, and the plaintiff's claim against the cancellation portion is dismissed

The defendant shall pay to the plaintiff 24,65,600 won and 2,326,00 won per month until he/she expresses his/her intention of employment from May 1, 2014.

2. The defendant's remaining appeal is dismissed.

3. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The Defendant has expressed his intent to employ the Plaintiff. The Defendant shall pay to the Plaintiff the amount equivalent to KRW 2,326,00 per month from May 1, 2014 and KRW 2,326,00 per month from May 1, 2014 to the time he expressed his intent to employ (this part is a property claim, and the Plaintiff has reduced this part in the trial). The Defendant shall pay to the Plaintiff 5,00,000 and the amount equivalent to KRW 5,00 per annum from December 1, 2010 to the date of delivery of a copy of the complaint of this case, and 20% per annum from the next day to the date of full payment (this part was dismissed at the first instance court on the claimant, and it was excluded from the object of the immediate trial because the Plaintiff did not appeal).

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiff's claim against the revocation shall be dismissed.

1. Basic facts

The reasoning for this part is that the court below stated in Section 3 of the first instance court's decision that "joint supply and demand agreement," "as applicable to the joint supply and demand agreement and the instant contract," was added to "the amount of investment made by a person who withdraws from the No.I.D. shall be returned after the completion of the contract," and the first instance court's first instance decision 12,389,959,251," and "the amount of investment made by the person who withdraws from the No.I.D. shall be returned after deducting the loss of Article 10," and the fourth through nine of the fourth through nine of the fourth to nine of the first instance court's decision : Provided, That the defendant's liability for the defendant's guarantee was extinguished prior to the occurrence of the guaranteed accident (as of December 5, 2014), and the guaranteed amount was also extinguished according to the subsidiary nature of the guaranteed obligation, and thus, the defendant's guarantee obligation was refused to perform the guarantee obligation to the plaintiff."

2. Determination as to the claim for security deposit under the first guarantee contract of this case

A. The plaintiff's assertion

1) The primary argument

Each of the instant contracts is concluded for the instant joint contractors, so the parties to each of the instant contracts are the instant joint contractors, which are the parties to the instant joint contractors, and the principal obligation subject to the guarantee also are the obligations to the Plaintiff of the instant joint contractors. Even if the Ulsan Construction renounced construction after the conclusion of each of the instant contracts and withdrawn from the instant joint contractors, the instant contract for the first guarantee of the instant case is valid as it is for the remaining members, as there is no change in the principal obligation due to the remaining members’ succession to all of the joint contractors. Therefore, as long as the remaining members are unable to perform the instant contract, and thus the guaranteed accident occurred, the Defendant is also liable to pay the Plaintiff the deposit for the instant first guarantee contract.

2) Preliminary assertion

Along with the fact that the parties to the first guarantee contract of this case are not joint contractors of this case, and the principal obligation subject to the guarantee is limited to the duty of Ulsan Construction, the Defendant is obliged to pay the guaranteed amount under the first guarantee contract of this case to the Plaintiff for the following reasons.

A) Article 1(1) of the Terms and Conditions of the instant case explicitly states that “Where a contractor fails to perform his/her obligation under the contract for construction works entered on the front side,” the liability of the Defendant is established due to the occurrence of the instant guarantee contract under Article 1(1) of the Terms and Conditions of the instant case, when Ulsan Construction was decided to commence rehabilitation procedures on October 22, 2014 and the Plaintiff expressed his/her intent to waive construction works.” Article 4(2) of the instant Terms and Conditions of the instant case is merely setting the suspension conditions or timing for claiming the performance of the Plaintiff’s guarantee (hereinafter “Section 1”).

B) There is no ground to deem that the Ulsan Construction’s withdrawal from the joint contractor of this case upon the commencement of rehabilitation procedures, and the Plaintiff entered into a modified contract with the remaining members to divide the equity shares of Ulsan Construction after the approval of the said withdrawal, not as a matter of course, nor as a matter of course, an expression of intent to exempt the Plaintiff from liability is included in the approval of withdrawal. As long as the remaining members fail to perform their duties against the Plaintiff, the withdrawing member shall be jointly and severally liable for the nonperformance (hereinafter “the second chapter”).

C) If Ulsan Construction becomes exempt from its obligation under the instant contract due to the withdrawal of Ulsan Construction, the status of the contractor under the instant first guarantee contract ought to be naturally transferred to the remaining members who were transferred the shares of Ulsan Construction. There was the Defendant’s explicit or implied consent on the succession of the contractor’s status. According to Article 4(2) of the instant terms and conditions, the said succession of the status of the contractor is naturally scheduled under the instant first guarantee contract (hereinafter “section 3”).

D) Around September 2014, the Defendant responded to the Plaintiff that, with respect to the construction contract between the Plaintiff and the other joint contractors, some of the members of the said joint contractors withdrawn from the performance bond issued by the Defendant, that “the Defendant’s liability to guarantee is still effective until the date of actual completion,” and did not raise any objection against the Plaintiff’s withdrawal from the Ulsan Construction on December 5, 2014, and on December 12, 2014, the Defendant did not notify the Plaintiff of the fact that the alteration contract was entered into in which the alteration of equity shares was reflected due to the change of equity shares was made. As to the question of the validity of each of the respective guarantees of this case, the Defendant responded to the Plaintiff that “the change of equity ratio is not a change in the principal contract, and it is not necessary to issue a new guarantee certificate.” Although the Plaintiff expressed his intent to pay the entire amount of the deposit including the deposit under the first guarantee contract of this case, refusing the payment of the deposit under the guarantee contract of this case violates the principle of good faith or the principle of prohibition (hereinafter referred to Chapter 4).

B. Defendant’s assertion

The parties to the first guarantee contract of this case are Ulsan Construction which is not the joint contractors of this case. It is not the guarantee for the entire joint contractors of this case, but only the guarantee for Ulsan Construction. However, since the contract of this case, which is the main contractors, is a joint contract concluded by the joint implementation method, the defendant is liable for the guarantee only when the remaining members fail to meet the requirements for performing the contract, or fail to perform the contract even if they fail to meet the requirements for performing the contract, in accordance with Article 4(2) of the Clause

However, the Ulsan Construction, upon obtaining the approval of the plaintiff before the occurrence of the guarantee accident under Article 4 (2) of the terms of the contract of this case, withdrawn from the joint supply and demand company of this case, and the plaintiff concluded a new contract for the modification of the contract of this case with only the remaining members as the contractor. Accordingly, the obligation under the contract of this case, which is the principal obligation, was extinguished, and the obligation of the defendant under the guarantee contract of this case was extinguished in accordance with the principle of non-s

C. Whether the party to the first guarantee contract of this case and the principal debtor are the joint contractors of this case

1) In full view of the above basic facts and the following circumstances inferred therefrom, it is reasonable to deem that the parties to the instant first guarantee contract and the principal debtor subject to the instant guarantee are not the instant joint contractors, but the Ulsan Construction.

A) Article 5 of the joint supply and demand agreement applicable to the instant contract provides that "members shall be jointly and severally liable for the performance of their obligations under the contract to the ordering agency." However, Article 10 of the Guidelines for joint contract operation applicable to the instant contract shall be paid in installments by the members of the joint supply and demand agency in accordance with the ratio or share of the members prescribed in the joint supply and demand agreement. However, in cases of joint contract by the method of joint performance or the method of management of the principal contractor, one of the representatives of the joint supply and demand agency or the members of the joint supply and demand agency may be made collectively." Thus, in principle, the members of the joint supply and demand agency shall perform the obligation to pay the contract performance bond in installments in accordance with the ratio of their respective shares.

B) The Ulsan Construction, the Ginam Enterprise, the Promotion Enterprise, and the Kiman General Construction concluded each of the instant guarantee contracts individually with the amount equivalent to the respective investment rates among the total amount of contract performance guarantee to be paid to the Plaintiff as the guaranteed amount, and submitted the respective performance guarantee to the Plaintiff, respectively. The Plaintiff received each of the above performance guarantee contracts without any objection thereto.

C) The instant joint contractor constitutes a partnership under the Civil Act, and the Ulsan Construction, its representative, has the authority to perform duties on behalf of the instant joint contractors (Article 3 of the Joint Supply and Demand Agreement). However, in order to perform the obligation to pay the contract performance guarantee that each partner bears in installments according to his/her own share of investment pursuant to the relevant provisions as seen earlier, it is difficult to deem that the Ulsan Construction has the authority to act on behalf of the members until the conclusion of the contract is made, and it is difficult for the Ulsan Construction to conclude the respective guarantee contract with the intent to act on behalf of the members.

D) Article 4(2) of the Terms and Conditions of this case provides that in the case of a joint contract concluded by a joint performance method, not only a part of the members’ failure to perform the contract but also the remaining members’ failure to perform the contract. However, the reason is that in a joint performance method, the joint performance method bears the obligation to perform the construction jointly and severally. Thus, even if an individual member who is the other party to the guarantee contract waives the construction, if it is possible to perform the construction only by the remaining members, the contractor (joint contractors) cannot be deemed to have fulfilled the contractual obligation. Therefore, solely on the ground that the contract of this case requires the determination of the occurrence of a guarantee accident based on the entire joint contractors, each of the instant contracts of this case cannot be deemed to have guaranteed the obligation to compensate

E) On July 9, 2015, the Defendant, upon making a public announcement of inquiry into the intent to guarantee construction, entered the full amount of the remaining construction, including the amount guaranteed under the instant guarantee contract, into the contract amount (Evidence No. 29). However, the primary obligation guaranteed by the Defendant under each of the instant guarantee contracts includes not only the obligation to pay individual deposits, but also the obligation to complete construction, and upon occurrence of a guarantee accident, the Defendant shall perform the guaranteed obligation by means of a guarantee execution that selects the performance company and completes the remaining construction (Article 3(1) of the instant contract) prior to the payment of the deposit (Article 3(1) of the instant contract). As long as the construction work completion obligation of each of the parties to the instant guarantee contract is a joint and several obligation, the Defendant shall select the performance company as to the total amount of the guaranteed construction, regardless of whether the individual guaranteed amount is a joint and several obligation. The Defendant’s public announcement of inquiry into the intent to guarantee construction with the full amount of the remaining construction amount as the contract amount is natural in view of the nature of the principal obligation.

F) With respect to the portion of landscaping construction of the instant construction, for which Ulsan Construction had been shared, succeeded to the construction of Ulsan and waived construction, and the Defendant renounced the construction. Although the Defendant did not issue a new performance bond for the construction of Ulsan, the Defendant paid the guaranteed amount under the performance bond for the construction of Ulsan Construction to the Plaintiff. However, on November 21, 2014, the Defendant requested on the Plaintiff to “the Plaintiff to take necessary measures to enable the Plaintiff to continue the landscaping construction by succeeding to the construction of Ulsan,” and such request is deemed to have expressed his consent to the Plaintiff to take over the obligation of the landscaping construction of Ulsan Construction, which is the principal obligation of the contract for guaranteeing the portion of the landscaping construction, which is the principal obligation of the contract for guaranteeing the construction of Ulsan Construction. Accordingly, the Defendant’s failure to pay the guaranteed amount to the Plaintiff can not be deemed to have paid the guaranteed amount to the Plaintiff as the principal obligor’s failure to pay the new performance bond or the guaranteed amount to the Plaintiff due to the lack of the Defendant’s new performance bond.

G) In a case where four companies, such as Gyeongnam companies, etc. formed a joint supply and demand organization and concluded a contract for other construction works with the Plaintiff, and the Defendant issued a performance bond with the amount of security deposits divided by their respective shares, the Defendant responded to the purport that “the change of shares among the joint contractors liable for joint and several liability is difficult to view that there is a significant change in the terms of the main contract, and thus the validity of the existing performance bond is not lost” (Article 16-1 through 4). In a case where two companies, such as the East Asia Construction Industry, constitute a joint supply and demand organization and concluded a contract for road construction works and received a performance bond with the amount of security deposits divided by their respective shares from the Defendant, the Plaintiff asked from the Plaintiff that “the same construction industry withdraws from the joint supply and demand organization and the remaining shares were fulfilled by the members of the joint supply and demand organization,” and that “the Defendant’s performance bond with the guarantee obligation of the members of the new joint and several liability for the change in its financial status shall not be deemed valid until the date of the actual completion of the construction works, as well-existing terms and conditions of each of the joint supply organization.”

2) Therefore, we cannot accept the Plaintiff’s primary assertion premised on the premise that the party to the first guarantee contract of this case and the principal debtor subject to the guarantee are joint contractors of this case, not Ulsan Construction.

(d) Whether a guaranteed accident has occurred when the construction of Ulsan has been waived;

1) In a contract performance guarantee contract, the term “influence” refers to an uncertain accident that specifies the guarantor’s obligation to pay the contract performance guarantee money. As such, what the guaranteed accident is specific must be determined by taking into account the contractual terms included in the contract and the details of the principal contract citing the said contractual terms and conditions (see, e.g., Supreme Court Decisions 98Da25177, Mar. 24, 200; 2004Da16976, Apr. 28, 2006).

2) In full view of the following circumstances revealed in the above basic facts together with the purport of the entire pleadings, the guarantee accident stipulated in each of the instant guarantee agreements shall be deemed to mean “the case where all members of the instant joint contractors become unable to perform their obligations under the instant contract.”

A) In the contract for joint performance, such as the instant contract, the parties to the joint supply and demand agreement, unlike the method of sharing the portion to be executed by each of the members of the joint supply and demand agreement, are jointly and severally liable for the joint performance. Thus, even if some of the members waive the construction, if it is possible for the remaining members to perform the construction works, the contractor cannot be deemed to have fulfilled the contractual obligation.

B) In a contract for joint performance method, each member of the joint contractor agreed to bear the contract performance guarantee individually in accordance with their respective investment ratio, the joint and several liability for the performance of the construction works by the members of the joint contractor does not constitute a separate liability.

C) In the instant contract, there is no provision stipulating that the contract performance guarantee equivalent to the share ratio of the members can be reverted to the Plaintiff solely on the waiver or withdrawal of construction works by some members.

D) Notwithstanding Article 50(1) of the Government Tender and Contract Execution Standards included in the instant contract, and Article 4(2) of the Terms and Conditions of this case, joint contracts concluded by a joint performance method may be performed only when the remaining members fail to perform the relevant contract even if some of the members of the joint procurement organization are unable to perform the contract due to reasons such as dishonor, etc.

3) On December 5, 2014, the Plaintiff’s conclusion of the foregoing modified contract with the Plaintiff on December 5, 2014 that the remaining members, such as Gyeongnam Company, etc. entered into a guarantee construction agreement pursuant to Article 3(1) of the instant terms and conditions after the occurrence of a guarantee accident due to the waiver of the construction works of Ulsan Construction. However, there is no evidence to deem that the Defendant entered into the said modified contract by selecting the remaining members, such as Gyeongnam Company, as a guarantee implementing company pursuant to Article 3(1) of the instant terms and conditions. Rather, according to the evidence evidence No. 18, the Plaintiff claimed the Defendant for the performance of the guaranteed obligation only on the ground of the waiver of the construction works of Ulsan Construction on November 12, 2014, and only notified the remaining members to complete and resume the construction works, which is a joint performance method, the said modified contract is only concluded under the agreement between the Plaintiff and the constituent members, and cannot be deemed to have been concluded by the Defendant’s guarantee construction.

4) Ultimately, the first claim of the Plaintiff’s preliminary assertion premiseding that the guarantee accident of the first guarantee contract of the instant case occurred immediately when the Ulsan Construction waived the construction work.

(e) Whether all liabilities of the Ulsan Construction which are the principal obligation have been extinguished;

1) On October 22, 2014, Ulsan Construction decided to commence rehabilitation procedures and notified the Plaintiff of the termination of the instant contract on November 24, 2014, the Plaintiff waived the performance of the instant construction by requesting the Plaintiff to conclude a modified contract so that the remaining members, such as Gyeongnam Enterprises, may succeed to their equity shares in the instant construction and continue the instant construction. The Plaintiff approved this. Accordingly, the remaining members, on November 28, 2014, concluded a joint supply and demand agreement to withdraw from the joint supply and demand company of this case with the content of the modified joint supply and demand agreement to succeed to the entire equity shares in accordance with their respective equity shares, and the Plaintiff also concluded a new joint supply and demand agreement that only the remaining members on December 5, 2014 as the contractor, reflecting the contents of the modified joint supply and demand agreement as seen above, or comprehensively taking account of the evidence Nos. 5 through No. 7, No. 81-2, No. 81-2, No. 2012

2) In addition to the following circumstances, it is reasonable to view that the remaining members have taken over all obligations under the instant contract of Ulsan Construction as a discharge in the way of a new contract with the Plaintiff, and that the Plaintiff also approved the contract by way of a new contract with the Plaintiff under the construction of Ulsan Construction as a joint contractor of the instant case.

A) First of all, if an agreement was concluded in order for the remaining members to jointly take over only the obligations of the Ulsan Construction to maintain the validity of the previous contract, the Ulsan Construction should be able to exercise the right to claim for the construction cost (38% of the construction cost) corresponding to their own shares under the previous contract. According to the said modified contract, the shares of the Ulsan Construction for the entire construction of the instant case, including the existing and high portion, are 0% and the remaining members have share of 100%.

B) The Plaintiff asserts that the contract of this case was entered into as a means to have the remaining members perform the joint construction obligation of the remaining members, while maintaining the validity of the contract of this case. However, even if according to the contract of this case, the work completion obligation is jointly and severally borne by the members of the joint supply and demand organization, and if some members fail to perform the work, the remaining members are jointly and severally liable for the remaining construction (for the joint exemption portion due to the performance of the joint construction obligation of the remaining members, only the joint supply and demand organization relationship occurs between the members of the joint supply and demand organization). Therefore, there is no reason to conclude the above modified contract in order to achieve the purpose as alleged above.

C) The reason why the Plaintiff approved the withdrawal of the Ulsan Construction and concluded the said modified contract with the remaining members is that the remaining members should complete the remaining construction due to the waiver of the Ulsan Construction. As long as their equity shares do not increase, the Plaintiff is entitled to claim the construction cost equivalent to the initial equity shares, and that excess portion is not entitled to claim the Plaintiff (Article 11 of the Guidelines for Joint Contract Operation contained in the instant contract and Article 8 of the Joint Supply and Demand Agreement). In light of the circumstances under which rehabilitation procedures commenced for the Ulsan Construction and the exercise of the right to indemnity is limited, the remaining members will increase the equity shares of the remaining members so that the remaining members can directly obtain from the Plaintiff.

D) In light of the above purpose of the withdrawal from the Ulsan Construction and the conclusion of the alteration contract, the Plaintiff and the remaining members are deemed to have reached a contract to delete the entire equity shares of the Ulsan Construction and modify the agreement with 100% equity shares of the remaining members so that all the members of the instant construction and the rights and obligations with respect to the instant construction will belong to the remaining members, and the Ulsan Construction would have reached an agreement with the intention to leave from the previous contractual relationship. Unless viewed as such, the remaining members hold 100% equity shares under the modified contract and still hold 38% equity shares under the previous contract, thereby going against the purpose of concluding the alteration agreement.

E) There is no provision suggesting that the terms and conditions of the foregoing modified contract continue to exist, or that the Ulsan Construction still is in the contractor status, among the terms and conditions of the foregoing modified contract. There is no evidence suggesting that the Plaintiff demanded the Ulsan Construction to perform the obligations under the instant contract after the conclusion of the said modified contract, or that the Ulsan Construction claimed the Plaintiff’s rights under the previous contract.

3) As long as the obligation of the Plaintiff of Ulsan Construction, which is the principal obligation of the first guarantee contract of this case, is extinguished due to the assumption of the foregoing immunity, the Defendant’s guarantee obligation under the first guarantee contract of this case shall also be deemed to have been extinguished pursuant to the main text of Article 459 of the Civil Act. Therefore, the Defendant’s assertion pointing this out is with merit, and the second main claim of the Plaintiff’s preliminary assertion that is premised on the existence of the obligation to the Plaintiff of Ulsan Construction is without merit.

(f) Whether the status of a contractor under the first guarantee contract is succeeded to the remaining member due to the withdrawal of Ulsan Construction.

1) As seen in the foregoing paragraph (e) above, the Plaintiff’s approval for the withdrawal of Ulsan Construction and the conclusion of a modified contract, and the obligation to the Plaintiff was extinguished. If the principal obligation is extinguished as above, the Defendant’s guaranteed obligation under the first guarantee contract of this case ought to be naturally extinguished pursuant to the main sentence of Article 459 of the Civil Act, and thus, it cannot be deemed that the status of the contractor under the first guarantee contract of this case is automatically succeeded to the remaining members upon the withdrawal of Ulsan Construction.

2) The Plaintiff asserted that there was the Defendant’s explicit or implied consent on the succession to the position of the contractor under the first guarantee contract of Ulsan Construction as to succession to the position of the remaining contractor under the first guarantee contract of this case. However, Article 4(2) of the Terms and Conditions of this case provides that “if the remaining partner does not meet the qualification requirements necessary for performing the contract or does not perform the contract, he may request the Defendant to discharge the guaranteed obligation.” However, the evidence submitted or invoked by the Plaintiff, including the evidence as stated in the evidence No. 16-1 to No. 17-6, and No. 20, No. 16-3) No. 20, is insufficient to recognize that there was the Defendant’s explicit or implied consent as to the succession to the position of the contractor under the first guarantee contract of this case. There is no other evidence to acknowledge this otherwise.

3) The plaintiff argues that it is unreasonable to exercise the right to claim the deposit under the guarantee contract of the withdrawing member, even though it is evident that if the representative of the joint contractor concludes a guarantee contract on behalf of the joint contractor, if he/she had concluded a single guarantee contract on behalf of the joint contractor, the full amount of the contract deposit can be claimed.

However, the above result is due to the Plaintiff’s agreement to pay the contract performance bond in installments according to the respective investment ratio of each constituent member, and it cannot be deemed a result due to an unexpected circumstance where the Plaintiff could not control the Plaintiff. In addition, even if each constituent member receives a divided performance guarantee according to the investment ratio, the guarantee creditor, as a guarantee creditor, can obtain a contract deposit equivalent to the investment ratio of the withdrawing constituent members by additionally submitting a performance bond according to the changed investment ratio from the remaining constituent members when he/she withdraws from the joint venture and takes over his/her remaining part’s share to the remaining members, or by obtaining consent from the guarantee agency to accept the obligation from the guarantee agency to guarantee the withdrawing constituent members (only if the remaining constituent members cannot obtain the Defendant’s consent without submitting an additional performance guarantee document, it may be deemed that the guarantee accident stipulated in each of the respective investment contracts of this case has already occurred at that time. Thus, the Plaintiff cannot be said to be unreasonable without delay, as a result of the Plaintiff’s failure to take such measures.

4) Therefore, we cannot accept all the third claim among the plaintiff's conjunctive assertion.

G. Whether the defendant's refusal to pay a security deposit under the first guarantee contract is against the good faith principle or the good faith principle.

1) First of all, there is no evidence to acknowledge that the Plaintiff made an interpellation to the Defendant regarding the validity of each of the instant guarantees, or that the Defendant made an answer to the question that “the change in the share ratio is not a change in the principal contract, and it is not necessary to issue a new guarantee certificate.”

2) On September 2014, 2014, two companies, including the East Asia Construction Industry, formed a joint contractor and concluded a road construction contract with the Defendant to issue a performance bond for the guaranteed amount divided according to their respective shares, the Plaintiff responded to the purport that, upon questioning from the Plaintiff, “the East Asia Construction Industry would withdraw from a joint contractor and implement its remaining shares, and the Defendant’s letter of guarantee submitted by the East Asia Construction Industry would continue to be valid until the actual completion date.” However, the Defendant’s response appears to be different from the instant case, and it appears that the Defendant would agree to the alteration of shares that will take over only the remaining shares to the remaining members, and even if the form of the change of interests was identical to the instant case, it is difficult to view that the Defendant consented to the said change of the principal obligor’s financial condition, considering the characteristics of the guaranteed construction project or the characteristics of the remaining members, etc., and thus, it is difficult to view that the Defendant expressed his opinion as above with respect to each of the instant construction works.

3) After receiving a public notice from the Plaintiff on December 2014, stating that the Defendant approved the withdrawal of the instant joint supply and demand from the Plaintiff, and entered into a modified contract with the remaining members on or around June 2015, the Defendant did not clearly raise an objection to the said modified contract until he/she is demanded to discharge the guaranteed obligation from the Plaintiff. However, even though the Defendant did not raise an objection to the withdrawal and the conclusion of the modified contract, the Defendant is not obliged to actively notify the Plaintiff of the validity of the first guarantee contract, or to inform the Plaintiff of the additional guarantee amount in accordance with the modified investment ratio.

4) There is no obvious material to acknowledge that the Defendant has expressed his/her intent to pay the entire amount of the deposit including the deposit under the instant guarantee contract. [Once the phrase “to be performed as a guarantee for all shares” in the letter sent by the Defendant as of June 17, 2015 (Evidence A No. 12-1), the phrase “to be performed as a guarantee for all shares” is that the promotion company and the chemical construction company will continue to perform their respective shares, and the Defendant intends to execute the guarantee construction only for shares of the Gannam company. However, if it is difficult to continue to execute the construction due to the failure to execute the contract with the promotion company and the chemical comprehensive construction, it seems that it is merely the purport of executing the guarantee construction for all shares including the above shares of the two companies).

5) Therefore, the above circumstances cited by the Plaintiff alone are difficult to view that the Defendant’s refusal to perform the obligation to pay the deposit under the instant guarantee contract is against the principle of good faith or the principle of good faith, and there is no other evidence to acknowledge it, and thus, the Chapter 4 of the Plaintiff’s conjunctive assertion cannot be accepted.

3. Determination on the claim for damages for delay resulting from delay in the payment of deposit

The reasoning for this part is that the court does not add the following judgments between the 18th and 18th and the 17th and the 18th and the 18th and the corresponding part of the reasoning of the first instance judgment. As such, this part of the reasoning of the judgment is cited by the text of Article 420 of the Civil Procedure Act.

【Supplementary Part】

Inasmuch as the Plaintiff presented the condition that it is impossible for the Defendant to award the contract from the beginning (to complete the remaining construction work until July 31, 2016) and presented a public notice of tender, it cannot be deemed that there was a justifiable reason to postpone the payment of the deposit during the process of bidding. However, it is difficult to conclude that the contract was impossible to award the contract from the beginning solely on the ground that the construction performance rate of the instant construction work is 13.74% at the time of the public notice of tender, and the completion period in the public notice of tender is up to July 31, 2016, and there is no other evidence to acknowledge it otherwise, the Plaintiff’s assertion

4. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-ho (Presiding Judge)

(1) The Plaintiff asserts that the scope of the Defendant’s guarantee liability varies depending on the total guarantee form, including the guarantee certificate submitted by the members who have given up the construction work, if the principal obligation subject to the guarantee appears to have been considered to have been solely by the obligations of the individual members when determining the occurrence of the guarantee accident based on the entire joint venture body. The Plaintiff asserts that the scope of the Defendant’s guarantee liability varies depending on whether all the members were to fail to perform the construction work at the same time, and if any of the members failed to perform the construction work in consecutive order, the scope of the obligation to perform the construction work should be changed. However, in the event that some of the members among the joint venture body gives up the construction work, the Plaintiff is urged to jointly perform the remaining construction work, and if the remaining members fail to perform the construction work, the Plaintiff may request the Defendant to perform the guaranteed obligation pursuant to the total guarantee form, and there is no reason to change the scope of the Defendant’s guarantee liability depending on who has given consent to the acceptance of the remaining members’ shares by the remaining members of the construction work, and thus, the Plaintiff’s waiver of the construction work can not obtain consent to the remainder from the Plaintiff’s.

Note 2) Supreme Court en banc Decision 2009Da105406 Decided May 17, 2012, see Supreme Court en banc Decision, etc.

3) Evidence A No. 20 (Defendant’s official document dated November 21, 2014) merely indicates that, with respect to the Plaintiff’s request for performance guarantee of the part of the landscaping project that was jointly performed by Ulsan Construction, it is difficult to view that the Plaintiff consented to the Plaintiff’s acceptance and continued performance of the duty to perform the Ulsan Construction Project, and it is also difficult to agree to the remainder of the obligation of Ulsan Construction or the status of the contractor under the First Guarantee Agreement.