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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Facts of recognition;
A. On December 17, 2007, the Plaintiff subcontracted to A (trade name: B) the Miscellaneous Articles Corporation (hereinafter “instant construction”) among the Construction Works of Busan-gun apartment building C (hereinafter “instant construction”) at the construction period from December 19, 2007 to August 31, 2008, the construction price of KRW 976,54,000, and the contract price rate of KRW 10% of the contract amount.
(hereinafter “instant subcontract”). (b)
A, on January 10, 2008, concluded a contract with the Defendant to guarantee the performance of the obligation under the instant subcontract agreement with the Plaintiff (hereinafter “instant contract for performance guarantee”) and issued a contract guarantee to the Plaintiff from December 17, 2007 to August 31, 2008 (hereinafter “instant contract for performance guarantee”) to guarantee the performance of the obligation under the instant subcontract agreement with the Defendant.
The terms and conditions of guarantee of the contract of this case stipulate that the performance of the obligation arising within the guarantee period may be guaranteed in cases where the subcontract of this case falling under the contract of this case is terminated, the plaintiff may submit the prescribed documents and claim for the performance of the guarantee obligation to the defendant within the limit of the deposit.
C. However, even though A is obligated to complete all of the instant construction works by August 31, 2008, which is the date of completion agreed upon under the instant subcontract agreement, the Plaintiff failed to perform the instant construction works normally due to default. The Plaintiff received a letter of waiver of construction and a written confirmation of settlement of accounts for construction works, etc. from A, and notified A of the termination of the instant subcontract contract on August 29, 2008 by means of content-proof mail, and at that time, the said notice was delivered to A.
On November 7, 2008, the Plaintiff claimed KRW 94,654,400 to the Defendant according to the contract performance guarantee contract of this case, but the Defendant respondeded that the payment of deposit is impossible on September 10, 2012 on the ground that the contract of this case was terminated.