2015Na19171 Rent, etc. for construction materials

The manufacturing industry of the corporation

A Stock Company

Seoul Western District Court Decision 2014Gahap2778 Decided May 28, 2015

March 9, 2016

April 22, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 278,410,151 won with 20% interest per annum from the day following the delivery of a copy of the payment order of this case to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as follows, except for the addition of the following determination to the corresponding part of the argument made by the defendant in the trial by supplementing the argument of the first instance, and therefore, it is consistent with the main text of Article 420 of the Civil Procedure Act.

2. Determination as to the defendant's assertion at the trial

A. The defendant's assertion

1) The non-existence of the agreement on additional construction cost

The instant lease agreement is not a simple material lease agreement, but a total contract amount to complete the “construction works, such as the system dong Ri, etc.,” among the subcontracted projects in this case, including material and labor cost. Therefore, even if an additional construction works have been made, the Plaintiff may not claim the additional construction cost unless there exists an agreement on the increase in the construction cost.

2) The assertion to waive the claim

The Plaintiff’s Staff H renounced the Plaintiff’s claim for rent for the materials that were additionally used in relation to the re-subcontract work of this case by submitting a written confirmation (No. 5) on behalf of the Plaintiff (i.e., the document on settlement of accounts of the system book) with the Plaintiff’s seal affixed to the

B. Determination

1) Determination as to the non-existence of the agreement on additional construction cost

In full view of the following circumstances acknowledged by the facts as seen earlier and the purport of the entire pleadings, where the number of days of use and quantity of materials at the time of entering into the instant lease agreement and sub-subcontract increase, the Defendant can be recognized as having agreed to pay the Plaintiff additional materials cost and labor cost, i.e., additional construction cost., the Defendant’

① The Plaintiff entered into the instant lease agreement that leases the instant temporary materials to the Defendant, and the re-subcontracting agreement that installs the instant temporary materials at the site of the subcontracted project. Of the estimates of this case, the portion of the rent for the instant lease agreement, and the portion of the “labor cost” portion, which indicate the rental fee for the instant sub-subcontracting project.

② According to the estimate of this case, the "labor cost" is calculated based on the amount calculated by multiplying the "Quantities" and the "unit price" by the unit price, based on the type of materials, etc. based on a certain period of time, as well as the "materials cost" items and the "labor cost" items are also agreed to change according to the quantity.

③ In fact, labor costs paid to F and G are KRW 357,383,942, which are KRW 223,662,50,00, total labor costs indicated in the instant written estimate (i.e., written estimate labor costs of the system 112,945,00 + KRW 110,717,500,00), and the Defendant’s assertion that it was inevitable to continue the construction without the actual obligation to pay, is difficult to easily accept the Defendant’s assertion that the said additional construction costs were paid. Moreover, the said additional construction costs were substantially increased as a result of the occurrence of the construction, and such circumstances were sufficiently anticipated from the time of the contract, and even if additional construction is to be performed as total amount of the instant lease and sub-subcontract, it is difficult to view that the said additional construction is limited to the amount indicated in the instant written estimate, including material and labor costs.

④ In the event that the Plaintiff performs an additional construction project in accordance with the orders of Defendant or Hyundai Construction, the subcontractor is entitled to claim for the additional construction cost against Hyundai Construction, which is the subcontractor. However, no special circumstance exists to deem that the Plaintiff agreed against the Defendant not to claim for the additional construction cost.

2) Determination on the assertion on the waiver of claims

A) The waiver (or exemption of an obligation) of a claim does not necessarily necessarily require an explicit declaration of intent, and it should be recognized in cases where it can be seen as a waiver of a claim by means of an obligee’s act or interpretation of an expression of intent. However, for such recognition, the determination on whether to apply a claim by strict interpretation of an obligee’s act or expression of intent in accordance with the content of the pertinent legal relationship (see Supreme Court Decision 2010Da56357, Jan. 1, 2010).

B) Comprehensively taking account of the following circumstances revealed by the evidence as seen earlier, even if the Plaintiff’s staff H affixed the Plaintiff’s evidence No. 5, as alleged by the Defendant, it is difficult to view that the Plaintiff renounced the Defendant’s additional rent claim regarding the re-subcontract.

① The certificate No. 5 (Written Confirmation) states that “The document No. 5 (Written Confirmation)” is a sheet that calculates the contract quantity, execution quantity, increase and decrease, additional items, total amount, etc. in relation to the re-contract construction in this case under the title of the title, and that “I confirm it as it is not a document related to the settlement of accounts between the Plaintiff and the Defendant, since it is a document prepared for the submission of modern construction works at the site of Hyundai ConstructionD E.

The evidence No. 5 was prepared for the purpose of the settlement of construction cost between the defendant and Hyundai Construction even according to the above wording itself, and the plaintiff and the defendant were settled in accordance with the above description, and it does not mean that the plaintiff waives his claim against the defendant for additional payments.

② There is no reasonable ground to waive the Defendant’s right to the additional rent unilaterally upon the completion of the additional works, etc.

③ There is no evidence to deem that the Plaintiff agreed on the waiver of claims, such as additional rents, and the direct claim for additional rents for modern construction. There is no evidence to deem that the Defendant transferred claims equivalent to the increased quantity of the temporary materials of this case to the Plaintiff regarding modern construction, nor there is no data to inform the Plaintiff of the fact of transfer in modern construction.

(No.4. On January 23, 2014, the No.4486, Jan. 23, 2014, the Plaintiff notified the Defendant that it was not a contracting party (Evidence A9). In fact, the Plaintiff did not directly pay the construction cost using the system Dongba and B/T system to the Plaintiff.

⑤ With respect to Hyundai Construction and subcontracted Construction, the Defendant settled the accounts by reflecting the quantity of the provisional materials increased compared to the initial contract and received both the construction completion money (as a result of the fact-finding inquiry conducted by the court of first instance on modern construction, each entry in the evidence Nos. 12 and 14, and the purport of the entire pleadings). (6) The Plaintiff did not cancel the issuance of a tax invoice equivalent to the additional rent issued to the Defendant or issue a tax invoice equivalent to the additional rent for Hyundai Construction

3. Conclusion

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

Judges of the presiding judge, Yang Sung-ju

Judge Full-time

Judges Cho Jin-gu