A. Whether the agreement on liquidated damages for delay under the construction contract applies even where the contract is rescinded (affirmative);

(b) In the case of the preceding paragraph, the time, period and amount of the penalty for delay;

A. A contract for new construction of a building is a contract aimed at the completion of the work called the completion of the building, and the agreement on compensation for delay is scheduled to pay damages for delay to the contractor due to delay in the completion of the same day. Thus, unless the contractor completes the work and does not deliver it to the contractor within the agreed period, the contractor is obligated to pay compensation for delay, unless there are special circumstances. The agreement on compensation for delay is not applicable to the contract for delay, on the ground that the contract for new construction of a building has been completed at the completion of part of the construction before the agreed date and the contract has not been completed by the contractor after the termination of the construction

B. In the case of the preceding paragraph, the period of compensation for delay shall not be deemed to continue without delay until the completion of the building is completed unless there are special circumstances, and the period of the contract completion or the completion shall not be limited from the time when the contractor or the contractor has suspended the construction or the contractor could have cancelled the construction due to other reasons for cancellation (not in the case of de facto cancellation) to the time when the contractor could have requested another contractor to complete the same building and the contractor could have delayed the construction due to a cause not attributable to the contractor, and if the construction has been delayed, it shall be deducted for that period, and if the amount of compensation for delay calculated is deemed to be excessive unfairly, the court may reduce it as appropriate in accordance with Article 398(2)

Article 398 of the Civil Act, Article 667 of the Civil Act

Dried Construction Corporation

Defendant-Appellant No. 50

Seoul High Court Decision 87Na502, 503 (Counterclaim) decided February 2, 198

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

We examine the grounds of appeal.

With respect to the First and Second Points:

Examining the reasoning of the judgment below in light of the records, we affirm the fact-finding of the court below on June 2, 1983 by the plaintiff (Counterclaim defendant, plaintiff hereinafter referred to as the " plaintiff") as to the portion of the construction and the amount of construction cost corresponding to its origin and foundation, and it cannot be said that there was an error of law by misunderstanding the rules of evidence in the evidence preparation and fact-finding of the court below.

There is no reason to believe that the grounds for the theory of lawsuit claiming the argument eventually leads to the criticism of the lower court's whole right.

With respect to the third point:

According to the reasoning of the judgment of the court below, the court below held that the contract between the plaintiff and the defendant (Counterclaim plaintiff, hereinafter "the defendant") was not completed within the time limit, and thus, the plaintiff could not claim damages to the defendant when the defendant cancels the contract. However, this is merely a limitation of the defendant's claim for damages incurred by the plaintiff due to the rescission of the contract in accordance with the above special agreement, and it does not exclude the plaintiff's claim for construction payment corresponding to the completed portion until then. In light of the records of the case, there is no reason to criticize the judgment of the court below from the opposite view, since the interpretation of the special agreement seems

With respect to the fourth point:

In light of the records of the case, the court below is justified in the judgment below that held that the defendant purchased and supplied ready-mixed to the plaintiff, and that the price was 17,695,491 won, and that there was no violation of the rules of evidence, such as the theory of lawsuit, and that there was no error in the court below's finding this part of the fact-finding. If the defendant agreed to deduct the above ready-mixed from the construction price as recognized by the court below from the plaintiff and supplied the plaintiff with the purchase of the above ready-mixed from the non-party corporation to the plaintiff, the defendant's delayed payment of the obligation to pay the ready-mixed and the compulsory execution expenses of the non-party company are not of the nature to be deducted from the construction price of this case. The judgment below is also justified in the same purport.

With respect to the fifth point:

According to the reasoning of the judgment below, the court below confirmed that the contract of this case was terminated on November 10, 1982; the construction work was completed on June 30, 1983; the construction work was completed on June 25, 1982; the construction work was completed on May 31, 1983; the construction work was paid on three occasions according to the degree of the construction work; the construction work was suspended on June 2, 1983; and the defendant's assertion as to liquidated damages was delayed on November 13, 1984; where the completion date of the construction work of this case is later than the scheduled completion date at the time of the contract of this case, the plaintiff agreed to pay compensation for delay equivalent to 3/1,000 of the total construction contract amount on the one day of the above construction work to the defendant; and where the construction work of this case was completed later than the scheduled completion date of the construction work under the special agreement of this case, the defendant did not have any effect on the cancellation of the claim for compensation for delay as against the plaintiff.

However, the contract for construction of a new building is a contract aimed at the completion of the work as the completion of the building, and the agreement on compensation for delay shall be deemed to have been set forth by the contractor as the amount of compensation for delay until the completion of the building is completed, unless there are special circumstances to the contractor, unless the contractor completes the work within the period agreed upon by the contractor and deliver it to the contractor. In this case, the above agreement on compensation for delay shall not be applied because the contractor has completed the construction before the agreed date and completed the construction before the agreed date and the contractor fails to complete the work after the termination of the contract. In this case, the period of compensation for delay shall continue as of July 1, 1983, the next day of the agreed completion date, unless there are special circumstances, and the completion date shall not continue until the plaintiff or the defendant completed the construction, and if the plaintiff could not cancel the construction or cancel it, it shall not be deemed that the amount of compensation for delay should be reduced to the extent that the plaintiff could not be requested by the court of this case from the date of cancellation of the construction work to the other party.

Therefore, the judgment of the court below is erroneous in interpreting the agreement on the liquidated damages in this case and misapprehending the legal principles on the liquidated damages, and it is reasonable to discuss this as it affects the judgment.

Therefore, the part of the judgment of the court below against the defendant is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ju (Presiding Justice)