Where the contractor has to calculate the construction cost due to the cancellation of the construction contract without completion of the construction work, the method of calculating the construction cost.

Articles 64, 665, and 673 of the Civil Act

Supreme Court Decision 94Da29300, 29317 Decided June 9, 1995 (Gong1995Ha, 2371) Supreme Court Decision 2000Da4095 Decided February 26, 2003 (Gong2003Sang, 891) Supreme Court Decision 2012Da39769, 39766 Decided May 24, 2013

Plaintiff (Attorney Lee Jong-hoon et al., Counsel for plaintiff-appellant)

How General Construction Co., Ltd. (Attorney Go-ro et al., Counsel for the plaintiff-appellant)

Gwangju District Court Decision 2014Na53260 Decided June 17, 2015

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. In a case where a contractor is obliged to settle the construction cost due to the rescission of a construction contract without completion of the construction work and the settlement of construction cost due to the completed construction work, barring special circumstances, such as where there is a special agreement, the construction cost shall be calculated by applying the agreed total construction cost ratio to the total construction cost, which accounts for the construction cost already completed portion among the total construction cost and the construction cost required for completion of the non-construction portion. Therefore, in order to calculate the construction cost due to the completed portion or to deduct the construction cost required for completion of the non-construction portion from the agreed total construction cost, special circumstances, such as the agreement, should be recognized (see, e.g., Supreme Court Decisions 94Da2930, 29317, Jun. 9, 195; 200Da4095, Feb. 26, 2003; 2095; 370, May 29, 2013).

2. On the grounds stated in its reasoning, the lower court determined that (1) the Defendant’s provisional attachment determination of KRW 548,90,00 for the instant construction project at the time of original adjudication on May 29, 2012 (hereinafter “Support Industry Development”) was based on the contract amount of KRW 40,00 for the instant construction project (hereinafter “the instant construction contract”) and KRW 49,90,000 for the obligees 40 and KRW 70 for the instant construction project; (2) the Plaintiff’s development of the Support Industry on November 7, 2012; (3) the Defendant’s provisional attachment determination of KRW 70,89,43 of the instant construction contract amount was based on the provisional attachment order of KRW 30,70 for the instant construction project; and (4) the Defendant’s provisional attachment determination of KRW 70,50,70 for the instant construction project to the extent that there was no evidence to acknowledge the Defendant’s completion of the construction contract amount of KRW 175,750,7000.

3. Examining the above facts in light of the legal principles as seen earlier, the following is determined.

A. First, as alleged by the Plaintiff, in order to consider the construction cost actually spent for the portion that completed the construction project until the instant construction contract is rescinded as the construction cost of this case, a special agreement between the Plaintiff and the Defendant regarding such calculation method shall be acceptable.

However, it is difficult to see the agreed part of the instant construction contract cited in the grounds of appeal as an agreement on the assessment of the original intent or the construction cost of the part of the original nature, and even if examining the evidence and records duly adopted, there is no special circumstance to deem the construction cost actually incurred until the time of termination of the contract as the contract price of this case.

In light of the reasoning of the judgment below, although the reasoning of the judgment of the court below as to this part is insufficient, the decision of the court below that rejected the plaintiff's above assertion is acceptable. Contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the origin of a case where a construction contract has been rescinded even when it was terminated, and the calculation of construction price for the part

B. However, in order to recognize the amount calculated by deducting the construction cost required for completion of the non-execution portion from the agreed construction cost stipulated in the construction contract of this case as the contract of this case, such as the approval of the court below, it should also be recognized that there are special circumstances to recognize the agreement or to assess the construction cost of this case in such a manner.

In addition, barring such special circumstances as the agreement, the amount calculated by multiplying the construction cost of this case by the ratio of the construction cost already completed to the total construction cost of the construction cost of this case and the construction cost incurred for the completion of the non-execution part after its cancellation, based on the assertion and evidence of the plaintiff and the defendant, etc., prior to the delivery of the provisional attachment decision of this case based on the above legal principles, shall be calculated as the construction cost of this case, and the construction cost of this case incurred prior to the cancellation of the construction contract of this case and the construction cost incurred for the completion of the non-execution part thereafter shall be calculated as the construction cost of this case.

Nevertheless, the lower court calculated the construction cost of this case by deducting the construction cost required for completion of the non-construction portion from the agreed construction cost, on the ground that there is no evidence to acknowledge the construction cost as to the Plaintiff’s assertion, without examining the existence of such special circumstances as above.

Therefore, this part of the judgment of the court below is erroneous in the misunderstanding of legal principles as to the determination of the construction cost in the case of the termination of a contract while the contract is terminated and the calculation of the construction cost in the part, which affected the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and 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.

Justices Kim Shin (Presiding Justice)