Pak Sports Co., Ltd. (Attorneys Lee Gyeong-woo et al., Counsel for the defendant-appellant)

Gyeonggi-do (Attorney So-ho et al., Counsel for the defendant-appellant)

October 11, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 529,68,974 won with 6% interest per annum from September 8, 201 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. As prescribed by Article 4 subparagraph 2 of the Act on Private Participation in Infrastructure (hereinafter “Private Investment Act”), the Defendant: (a) planned and publicly announced the business of constructing and operating the early elementary school and the 13 other than the early elementary school by the leased-transfer-lease method (hereinafter “instant business”); and (b) accordingly, formulated and publicly announced the instruction for proposal on September 12, 2008.

B. On October 29, 2009, the Defendant: (a) between the Plaintiff and the Plaintiff, designated the Plaintiff as the concessionaire and made investments in the said schools to build the said schools; (b) the ownership of the said school facilities shall be owned by the Defendant at the time of completion; and (c) the Plaintiff, instead, entered into a concession agreement with the Gyeonggi-do Office of Education to lease school facilities to the Gyeonggi-do Office of Education for the establishment period after obtaining the right to manage and operate the facilities for ten (10) years; and (d) collect investment funds, such as construction cost, by receiving the payment of operating expenses and facility rent, etc. (hereinafter

C. On November 4, 2009, the Plaintiff entered into a contract on the construction of the above school facilities with the above construction company as a joint-invested company by the head of the Korea Industrial Development Corporation (hereinafter “the Design”), the Korea Industrial Development Corporation (hereinafter “Korea Industrial Development”), the new construction company for the new construction of the above school facilities, and the construction company for the above school facilities (hereinafter “the new construction company for the new construction for the new construction for the new construction for the new construction for the new construction for the new construction for the new construction of the above school facilities. Of the above school facilities, the Plaintiff agreed to perform the construction work for the new construction of the new sports center for the am

D. Around December 2009, the Defendant: (a) requested the Plaintiff to set up an underground parking lot with the second floor below the above gymnasium underground in order to resolve the shortage of parking spaces by the faculty members and nearby residents; (b) on April 7, 2010, the Defendant calculated construction subsidies as KRW 1,220,340,00 (hereinafter “instant underground parking lot construction”) with respect to the installation of the above gymnasium underground parking lot (hereinafter “instant underground parking lot”) at the king, the Gyeonggi-do Office of Education, and the Gyeonggi-do Office of Education to support the construction cost; and (c) on April 13, 2010, the Plaintiff responded to the Defendant on April 13, 2010.

E. On April 23, 2010, the Plaintiff entered into a contract with the Korea Industrial Development Corporation for the instant underground parking lot construction (hereinafter “instant contract”). On January 17, 2011, the contract amount of KRW 1150,000,000 for the instant underground parking lot construction, and the deadline for completion was determined as January 17, 201, and the Korea Industrial Development commenced the instant construction of the instant underground parking lot on the same day.

F. During the construction of the instant underground parking lot at the site of the construction of the instant underground parking lot, the Korea Industrial Development suspended construction for cancer (hereinafter “the instant soil contamination”) and cancer determination, etc. at ordinary times (at least 2.5m to 10.0m) on the original design drawings and specifications (0m from 0.0m to 5.2m), and the construction was discovered (at least 2.5m to 10.0m). On May 18, 2010, the Plaintiff was unable to proceed with the ground destruction work due to the instant soil contamination, and it is difficult for the Plaintiff to file a civil petition due to noise, and the construction work is delayed due to the occurrence of noise. To solve this, the construction period was modified from the large brash rashing method to the low vibration crushing method, and the Plaintiff requested the Defendant to submit a report on the increase in construction cost to 80 days (at least 60m to 60m to 20m to 20m to 10.0m).

G. On July 29, 2010, the Defendant concluded an amendment agreement regarding the instant concession agreement (hereinafter “instant amendment agreement”) with the Plaintiff, and agreed to change total private investment expenses from KRW 25,223,82,00 to KRW 25,235,57,00, by reflecting the price fluctuation portion, etc.

H. On December 29, 2010, Korea Industrial Development: (a) prepared and submitted a positive report on a request for the extension of the construction period for 49 days, a contractor, to the Plaintiff on December 29, 2010; (b) the Plaintiff requested the Defendant to extend the construction period on the same day; (c) the Defendant extended the construction period to 34 days on January 7, 201 and changed the scheduled completion date to 34 days on February 20, 201; and (d) notified the Plaintiff, a project implementer, that all expenses incurred by the extension of the construction period should be borne by the Plaintiff.

(i) On February 10, 2011, the bill submitted the amendment to the scheduled completion date for the instant underground parking lot construction as of February 20, 201, and the said construction was suspended and completed on September 8, 201.

(j) On September 19, 201, the Defendant imposed KRW 589,622,859 on the Plaintiff for liquidated damages on the ground that the completion of the construction of a sports center at midnight was delayed by 200 days, and the Plaintiff paid the said liquidated damages around October 6, 201.

[Ground of recognition] Facts without dispute, Gap evidence 2 through 6, 8 through 10, Eul evidence 1 through 5, 9 through 17, 20, and the purport of the whole pleadings

2. The plaintiff's assertion

A. The Plaintiff, at the Defendant’s request, decided to additionally construct the instant underground parking lot construction, and started construction, and carried out the ground-breaking construction. The difference between earth and sand of this case different from the design documents provided by the original Defendant was discovered, and accordingly, the method of crushing and crushing has been changed from the method of crushing and Vibration to the method of microvibration cutting (calculated: 609,987,803 - 375,110,258 won). Accordingly, the Defendant is obliged to pay KRW 234,87,545 to the Plaintiff, since it constitutes a case where the total private project cost was increased due to design change due to a change in the scope of construction due to a change in the competent authority’s request under Article 13(1)1, 3, and (3)1 of the instant concession agreement or due to a cause attributable to the competent authority, it constitutes a case where the total private project cost was increased.

B. In addition, as the difference in the soil of this case was discovered, the period during which the construction was suspended for the cancer determination and the period required for cutting, crushing, removal, etc. was added to 80 days, and the construction was delayed during the construction period of the underground parking lot of this case. In addition, the contract should be terminated in cases where the concentrative rain has exceeded 100 days of delayed days pursuant to Article 91(2) and (4) of the Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party, and the contract should be additionally requested for the additional payment of the contract bond but the additional payment of the contract bond has not been requested if the contract is not terminated, the excess of 100 days out of the delayed delay penalty imposed by the Defendant is excessive. Thus, the defendant is obligated to return 294,811,429 won to the Plaintiff for delay exceeding 100 days of the number of days per delay (calculated: 200 days - 100 days).

3. Determination

A. Determination on the claim for additional construction costs

The fact that the construction of the underground parking lot of this case was additionally implemented at the request of the defendant in connection with the installation of the early A.M. sports center at the request of the defendant, and the fact that the A.M. was changed due to the soil contamination of this case during the process of the civil construction, and that the additional civil construction cost was incurred therefrom are as seen earlier.

However, comprehensively taking account of the overall purport of the pleadings as to Gap evidence Nos. 2, 5, and Eul evidence Nos. 1, 2, 5, 9, and 10 (including serial numbers), Article 13(1)1, 3, and 13(3)1 of the instant concession agreement may modify the total private project cost by mutual consultation only in cases where the total private project cost is changed due to a change in the scope of construction upon request from the competent authority or due to a cause attributable to the competent authority. If the project implementer requests an increase in the total project cost, the competent authority shall obtain prior approval. However, according to the design plan and geological survey document provided by the defendant before the instant contract was entered into, it was found that sacratic and sacrifine were distributed to the plaintiff at the early 200 A.S. site of the instant contract, but, in fact, it was found that the instant construction work was changed to the total amount of 00th 25th 7th 207 of the instant construction project cost.

Comprehensively taking account of the above facts, it is difficult to view that the civil construction cost incurred in relation to the construction of the instant underground parking lot constitutes a case where the total civil construction cost under Article 13(1)1, 3, and 13(3)1 of the instant concession agreement is changed.

Therefore, this part of the plaintiff's assertion is without merit.

B. Determination on the claim for refund of liquidated damages

Article 91(2) of the former Enforcement Decree of the Act on Contracts to Which a Local Government Is a Party (wholly amended by Presidential Decree No. 22303, Jul. 26, 2010; hereinafter “Enforcement Decree of the Local Contract Act”) provides that the head of a local government, etc. shall cancel or terminate a contract in cases where the other party to a contract delays contractual obligations and causes a cause to collect damages for delay, and the amount reaches at least 10/100 of the contract amount, and where it is obviously deemed that there is no possibility that the other party to the contract can perform the contract due to any cause attributable to the other party to the contract, and Article 91(4) of the Enforcement Decree of the Act provides that if the other party to the contract does not cancel or terminate the contract, the contract should be included in

However, comprehensively taking account of the overall purport of arguments as to Gap 2, 5, Eul evidence 8, 13, 4, 17, and 20 evidence (including paper numbers). Article 1(3) of Chapter 1 of the instant concession agreement provides that the concessionaire shall take charge of the investigation and design work. Chapter 6 of the general provisions provides that the competent authority shall not take any responsibility for the drawings and specifications provided under Chapter 601-2 of the said concession agreement. In addition to the research materials presented by the competent authority in relation to the above project, the concessionaire shall take responsibility for all matters arising from the failure. The plaintiff's failure to carry out the construction work shall be deemed to have been the project operator. The plaintiff's request for an additional survey and investigation on the remaining construction period shall be 0 days before the commencement of the construction work, and the plaintiff shall not extend the construction period to 10 days before the commencement of the construction work. The plaintiff's request for an additional survey and investigation on the remaining construction period from 20 days before the commencement of the construction work.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-young (Presiding Judge) and a leap-type cable