(영문) 대법원 2015.6.11.선고 2013다96769 판결

The part of the judgment of the court below against the plaintiff shall be reversed, and that part of the case shall be remanded to the Cheongju District Court Panel Division.

Reasons

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The Plaintiff filed a lawsuit against C Co., Ltd. (hereinafter referred to as “C”) and G, the actual management owner of which, under Cheongju District Court Decision 2010Kahap265, Cheongju District Court Decision 2010Kahap265, Jul. 26, 2010, “C and G shall jointly and severally pay 60 million won to the Plaintiff until September 30, 2010, and shall pay 60 million won to the Plaintiff by adding damages for delay at the rate of 20% per annum from the next day to the date of full payment,” and the decision of recommending reconciliation was finalized around that time.

B. C was awarded a bid for construction cost of KRW 205,825,00 on August 5, 201 (hereinafter “instant construction contract”). On August 12, 2011, C entered into a contract for construction works (hereinafter “the instant construction contract”) with KRW 205,825,000 for the instant construction works and the construction period, from August 12, 201 to February 7, 2012 (hereinafter “the instant construction contract”). The instant construction contract was concluded under the Act on Contracts to Which a Local Government Is a Party (hereinafter “Local Contracts Act”). The instant construction contract was based on the Act on Contracts to Which a Local Government Is a Party.

C. The Defendant was a creditor holding a monetary claim exceeding KRW 1.1 billion within C. On August 8, 2011, C entered into the instant transfer contract with the Defendant to transfer the instant claim for the construction cost to the Defendant under the status of excess of the obligation.

D. After entering into the instant contract for the assignment of claims, the Defendant provided C with part of the funds necessary for performing the instant construction as a loan, and C completed the instant construction on May 4, 2012, and the cheon City paid all the construction price to the Defendant from January 3, 2012 to May 22, 2013.

E. Meanwhile, after entering into the instant assignment contract, the Defendant paid approximately KRW 1.265 billion to C, and received approximately KRW 1.985 billion from C, and received approximately KRW 720 million (= KRW 1.985 million- KRW 1.265 million) more.

2. The court below held that C’s claim for the construction price of this case was changed in its nature, content, or value after commencement and completion of the instant construction work after the conclusion of the instant transfer contract, and therefore, it cannot be ordered to return the total amount of the construction price of this case to its original state following the cancellation of the instant transfer contract, and on the ground that it is reasonable to determine the objective appraised value of the instant claim at the time of the instant transfer contract within the scope of the Plaintiff’s secured claim, and order compensation for its equivalent value after confirming the objective appraised value of the instant claim at the time of the instant transfer contract, the assignment contract of this case should be cancelled within the scope of the amount equivalent to the profit of KRW 6,525,040 equivalent to the objective appraised value of the claim for the construction price of this case at the time

3. However, we cannot accept the judgment of the court below for the following reasons.

A. In light of Articles 9(1), 10(1), 13(2), and 14(1) of the former Local Contracts Act (amended by Act No. 12000, Aug. 6, 2013); Articles 15(1), 36, and 42(1) of the former Enforcement Decree of the Local Contracts Act (amended by Presidential Decree No. 23134, Sept. 15, 201); and the details and purport of the relevant statutes, where a constructor has determined as a successful tenderer of a construction project implemented by a local government pursuant to the Local Contracts Act, a contracting officer must conclude a construction contract with the local government. Thus, a constructor who has been determined as a successful tenderer of a construction contract has the right to request the local government to conclude a construction contract, and thus, a contractor has already been aware of the status as a party to the construction contract, barring any special circumstance, to conclude a construction contract between the successful tenderer and the local government (see, e.g., Supreme Court Decision 2017).

B. Examining the facts in light of the aforementioned legal principles, since the construction contract in this case was scheduled to be concluded at the time of the instant transfer contract, and the contents thereof have already been determined, such as the amount of the construction cost that C may receive when the construction work is completed, the establishment of the claim for construction payment in this case at that time is established. Furthermore, there is no clear evidence that the claim for construction payment in this case cannot be determined at a par value on the ground that C could perform the construction work in this case at the time of the instant transfer contract. Furthermore, insofar as there is no clear evidence that the construction contract in this case was actually concluded immediately after the instant transfer contract was concluded and the construction work in this case was completed at its own expense, and the Y paid all the construction payment in the Y to the Defendant. On the other hand, the value of the claim for construction payment in this case at the

C. Nevertheless, the court below, based on its reasoning, determined that the defendant is liable to return only KRW 6,525,040, which is equivalent to the profits of the Corporation of this case, to the plaintiff as compensation for value following the cancellation of the assignment of claims of this case. The court below erred in the misapprehension of legal principles as to the scope of restitution due to the revocation of fraudulent act, which led to failure to exhaust all necessary deliberations, which affected the conclusion of the judgment.

4. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of 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.