2012Confirmation of the existence of an obligation 54300

Construction of Forest Integrated Corporation

Advanced Engineering Professional Co., Ltd.

Korea

January 17, 2014

February 7, 2014

1. The defendant shall pay 129,564,427 won to the plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. The costs of the lawsuit, including the part resulting from the supplementary participation, shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant and the Intervenor joining the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff KRW 761,77,491.

1. Basic facts

A. On April 2009, Defendant Advanced Engineering Start Co., Ltd. (hereinafter “Defendant Advanced Engineering Start Co., Ltd”) concluded a concession agreement on the above project (hereinafter “instant concession agreement”) with Defendant Affiliated, which was designated as the executor of the Korea-U.S. University University Dormitory Dormitory and Engineering Rental Private Investment Project (hereinafter “instant project”) ordered by the Defendant Affiliated’s Department of Labor under the Republic of Korea (the present Ministry of Employment and Labor, hereinafter “Defendant Auxiliary”) and ordered by the Intervenor Affiliated, and entered into the said concession agreement (hereinafter “instant agreement”). The contents relating to the instant agreement are as follows.

Article 22 (Work Period)

(3) If a concessionaire requests an extension of the time or period of work, due to a cause attributable to the competent authority, a cause beyond control, and other causes recognized by the competent authority, and the competent authority deems it, it may adjust the time or period of work as referred to in paragraph

Article 28 (Compensation for Delay)

(1) If a project implementer completes the completion of a project for each unit facility (including the date of extension under this Convention) in excess of the completion date of the project for each unit facility (including the date of completion under this Convention), without good cause, the project implementer shall pay liquidated damages to the competent authority from the day following the completion date of the project for each unit facility (the completion date reflected in the extension date of the construction period under this Convention) as prescribed in Article 74 of the Enforcement Decree of the State Contracts Act and Article 75 of the Enforcement Rule of the same Act. In such cases, the contract amount, which is

B. On December 8, 2009, the Defendant’s advanced engineering entered into a design and construction contract with a construction company (hereinafter “construction company”) for the instant project. On February 2, 2011, the Plaintiff was entrusted with construction works with respect to construction works of the Korea Portx University (Sacheon) dormitory (hereinafter “Sacheon Camp”) and the Korea Port IV University (Asan) dormitory (hereinafter “Sasan Camp”).

C. Since July 14, 2011, the Defendant’s advanced engineering concluded a design and contract (the first revision) between the Plaintiff, etc. (hereinafter “instant modified contract”) due to the withdrawal of a part of the construction project from the Plaintiff, etc., and set the respective construction period from December 6, 2010 to January 29, 2012 with respect to Chuncheon Camps and Asan Camps (hereinafter “instant modified contract”). Of the general conditions incorporated into the instant modified contract (hereinafter “instant general conditions”), the contents of the instant case are as follows.

Article 20 (Compensation for Delay)

(1) When the other party to a contract fails to complete the construction works within the contract period (including the period extended under Article 21) stipulated in the contract, the other party to the contract shall pay compensation for delay to the project operator for each number of days immediately preceding the actual completion date. The compensation for delay shall be the sum of the amount equivalent to the compensation for delay generated under the provisions of Article 28 of the concession agreement for delay allowances and the amount equivalent to the (a) the interest accrued under the contract for borrowing

(3) A project operator may offset the penalty for delay under paragraphs (1) through (2) by the price to be paid to the other party to the contract, interest for delay of the payment of price, or other deposits, etc.

(4) Where the construction period is extended under Article 22 of the concession agreement, the period corresponding to such extended period shall not be included in the number of days delayed under paragraph (1) of this Article.

Article 21 (Extension of Contract Period)

(1) Where any cause for extension of the period of construction stipulated in the concession agreement occurs within the contract period, the other party to the contract shall request, without delay, the concessionaire to extend the contract period in writing via the field supervisor, attaching the amended process table for Article 16 (1)

(2) Upon receipt of an application for extending the contract period under paragraph (1), the project operator shall promptly verify such fact and, if the grounds for extending the contract are deemed as a result of such confirmation, take necessary measures, such as extending the contract period so that the Corporation may appropriately perform

(3) If a project operator approves a request for extension as referred to in paragraph (1), the penalty for delay shall not be imposed on the said extension as referred to in Article 20.

(4) The extension of the contract period under this Article shall be subject to the approval of the competent authority or a person to whom the authority is delegated under the provisions of the concession agreement.

D. On July 25, 2012, the delay of 178 days compared to the date of the initial completion of the project, the Plaintiff completed the Chuncheon Camp Project on July 25, 2012, and on February 29, 2012, the 31st day delayed than the date of the initial completion of the project. E. Defendant’s advanced engineering paid 863,762,84 won to the Plaintiff, etc. for the delayed delay in the project site of the instant project site (i.e., the total project cost of 4,852,60,60,245 won X1/1,000 x1,00 x 178 days, smallest below the first place, 121,234,258 won in total (i.e., the total project cost of 3,910,782, and 301,050 won in total) x 301,010 won in total, respectively).

[Ground of recognition] Facts without dispute, entry of Gap 1 through 7, 12 evidence, witness Gap's testimony, the purport of whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

1) Summary of the Plaintiff’s assertion

In the case of Chuncheon Campus construction, it is impossible for the construction-related vehicle to work in the event of rain or snow due to a sudden slope of the construction road, and it is impossible for the construction-related vehicle to work. This falls under the force majeure cause under Article 22(3) of the instant concession agreement, and the period during which the construction is impossible due to snow, 68 days during which the construction is impossible due to rain, and 64 days during which it is impossible to work due to rain shall be excluded from the number of delayed days, and 62 days during which it is impossible to work due to rain shall be excluded from the number of delayed days. Therefore, in the case of Chuncheon Campus construction, the compensation for delay shall be paid only 46 days for the Chuncheon Campus construction and the compensation for delay shall be paid to the Plaintiff. Accordingly, the Defendant advanced engineering shall pay the remainder of the construction payment, excluding the penalty for delay 223,219,611 won, to the Plaintiff.

2) Summary of the defendant's assertion

Article 22(3) of the concession agreement of this case is a cause attributable to the competent authority and force majeure, etc.

In the case, the extension of the construction period may be requested, and Article 28 of the concession agreement provides that the construction period shall be deducted from the number of days delayed. However, the plaintiff complies with the procedures for extension of the construction period.

In addition, parties to a contract should reflect the contract in light of ordinary expenses, snow, etc. in determining the construction period, and thus, it is difficult to deem that there was a strong rain or snow during the construction period to constitute a force majeure event. Rather, it is due to Plaintiff’s negligence as it was delayed in the Chuncheon Camp and Ampis construction, and the Plaintiff should bear compensation for delay for 178 days in the case of Ampis construction, and 31 days in the case of Ampis construction, respectively.

(b) The occurrence of liquidated damages;

According to the above facts, pursuant to Article 20(1) of the General Conditions of this case, the Plaintiff is obligated to pay the damages for delay for 178 days to the Defendant’s Chuncheon Campus Corporation, and the damages for delay for delay for 31 days in the case of Amincus Corporation. Meanwhile, as seen earlier, the Defendant’s advanced engineering calculated the damages for delay in the Plaintiff’s construction delay for Chuncheon Campus Corporation, 863,762,844 won, and the damages for delay in the case of Aminusus Corporation, 212,234,258 won, and the damages for delay in the construction price for each campingus are deducted from the above compensation for delay.

1) The meaning of force majeure event

As seen earlier, pursuant to Articles 28(1) and 22(3) of the instant concession agreement, which are applicable mutatis mutandis under Article 21(1) of the General Conditions, the Plaintiff requested the extension of the construction period due to the cause attributable to competent authorities, force majeure, etc. and the competent authorities recognized such extension, the extended period shall be excluded from the number of days of delay.

According to the evidence evidence Nos. 2 and 12, Article 3(1) of the General Conditions of this case provides that the concession agreement of this case takes precedence over the above general conditions, etc., and Article 3 of the concession agreement of this case provides that " Force Majeure Grounds" of this case does not require the parties to the Convention to perform the obligations under the concession agreement of this case.

Article 71 of the concession agreement stipulates that force majeure means a situation or cause (or combination of circumstances or causes) that is reasonably unforeseeable by the parties to the agreement, which does not belong to any of the parties to the agreement which enables it to be possible or adversely affected. Force majeure means a situation or cause (or situations or causes) that is not reasonably predicted by the parties to the agreement. Force majeure means a situation in which the party asserting force majeure has the burden of proof, which is directly and remarkably unable to overcome despite the reasonable efforts or prevention of the parties to the agreement necessary for the recovery of the cause, and that force majeure causes are determined by earthquake, flood, tidal wave, etc., discovery of disaster and dangerous goods or remains due to the overall operation of the nation or society, sudden

In full view of the language, purport, and contents of the instant concession agreement, a cause for force majeure shall be equivalent to natural disasters, such as earthquakes, tidal waves, floods, and ethical rainfalls, and thus, a party to a contract cannot reasonably anticipate such cause. Thus, the mere fact that there have been much rain or snow compared to the old year shall not be deemed to constitute a cause for force majeure.

2) Whether the rainfalls and snows at the Chuncheon campus and the Asan Campus construction site constitute a force majeure event

As seen earlier, it cannot be viewed as a force majeure event solely on the ground that there was much rain or snow than the old year, but such circumstance is deemed as a cause of force majeure in the event that construction is delayed in combination with the construction site’s conditions.

In full view of the facts as follows: Gap evidence Nos. 8-1, 2, 9 through 14, Eul evidence No. 1, 2, Eul evidence No. 3, Eul evidence No. 1 through 3, Eul evidence No. 15, witness testimony and arguments in the area of the construction site, the date on which rain above 3m during the construction period of the construction site was set is 64 days in the Chuncheon Camp, 62 days in the case of Asan Camp, 68 days in the vicinity of the Chuncheon Camp Corporation, 9 days in the case of the Chuncheon Camp Corporation, 20 days in the case of the Chuncheon Camp Corporation, 1,000 or less, 20 days in the case of the Switzerland Corporation, 20 days in the case of the Chuncheon Camp Corporation, 1,000 or less in the first construction site and 3 days in the case of the Switzerland Corporation, 20 days in the first construction site, 16 days in the case of the Switzerland Corporation's request for the extension of construction site.

한편, 위 증거들 및 을나 1 내지 10호증의 각 기재 및 증인 A의 증언 및 변론 전체의 취지를 종합하여 알 수 있는 사실 및 사정 즉, 원고는 피고 선진공학에게 처음에는 춘천캠퍼스의 경우 68일, 아산캠퍼스의 경우 66일에 대한 공사기간의 연장을 요청하였고, 이후에는 춘천캠퍼스 공사에 관하여 토공사(암) 증가 9일, 강수일 증가 51일, 동절기 기간 56일, 철근출하중단 18일 합계 134일 중 21일을 단축한 113일에 대한 공사기간 연장을 요청하였는데, 한국폴리텍대학이 공사기간 연장 요청에 따른 근거자료를 요구하자 2012. 1. 19.경 춘천캠퍼스의 경우 강수일 증가 16일, 동절기 공사기간 중단 59일, 철근공급 중단 18일 합계 93일을, 아산캠퍼스의 경우 동절기 공사기간 중단 12일, 철근공급 중단 18일 합계 30일에 대하여 공사기간 연장을 요청한 점, 원고는 강수일과 관련하여 춘천캠퍼스의 경우 기상청의 자료를 기초로 강수량이 3mm 이상인 날을 모두 공사를 진행할 수 없는 날로 보아 68일을 산정하였다가 이후에는 1981년부터 2010년까지의 연평균 강수일에 2011년 강수일을 단순 비교하여 51일을 지연일수로 산정하였고, 2012. 1. 19.경에는 16일로 조정한 점, 원고는 피고 선진공학에게 공사기간 연장을 요청하면서 실제로 비나 눈으로 인하여 공사가 불가능하였는지를 판단할 만한 객관적인 자료를 제출하지 아니하고, 단순히 기상청자료만 제시하였으며, 한국폴리텍대학의자료 보완요구에 응하지 아니하고, 단지 연장일수만을 줄여 다시 공사기간 연장을 요청한 점, 또한 원고는 이 사건에서는 심지어 0.1mm의 눈이 내린 날(2012. 1. 3.)도 공사를 수행하는 것이 불가능하였다고 주장하고 있으나, 피고 선진공학에게 공사기간 연장을 요청할 때에는 동절기 공사와 관련하여 영하 14도 이하로 기온이 낮아 공사 초기에 토목공사 수행이 불가능하였다는 점만을 연장 사유로 삼았을 뿐, 적설 등을 공사기간 연장의 사유로 내세운 적이 없는 점, 오히려 원고는 춘천캠퍼스 공사 착공 후 3개월이 지난 2011. 3. 10.까지도 가격 결정 등의 지연으로 토목공사 및 골조업체를 정하지 못하여 터파기 공사를 시작하지도 못하였는바, 원고가 터파기 공사를 시작할 무렵에는 겨울이 거의 끝난 시점이었던 점, 또한 2011. 6. 28. 무렵에는 원고가 춘천캠퍼스 및 아산캠퍼스 공사와 관련하여 골조 및 토목 장비 등 협력업체의 기성금을 미지급하여 공사가 중단되거나 지연되어, 실 공정률이 예정 공정률에 미치지 못하였던 점, 2011. 8. 4.경에도 춘천캠퍼스 및 아산캠퍼스 공사가 지연되었고, 아산캠퍼스 공사현장의 경우 현장대리인이 상주하고 있지 아니하였고, 실 공정률이 예정 공정률에 약 10% 이상이 미달한 상황이었던 점, 그로부터 2개월여가 지난 2011. 10. 19.경에는 원고가 자금부족으로 콘크리트 물량을 확보하지 못하여 춘천캠퍼스 공사를 중단하였고, 당시 예정 공정률이 69.98%였는데, 실 공정률은 30.49%에 불과하였던 점, 춘천캠퍼스 및 아산캠퍼스 공사 현장에서 감리원으로 근무한 A은 춘천캠퍼스 공사의 경우 착공 당시 비나 눈으로 인하여 공사를 진행함에 있어 약간의 애로가 있었지만, 공사가 불가능한 상황이 아니었고, 오히려 춘천캠퍼스 공사가 지연된 주된 이유를 원고가 하도급업체들에게 공사대금을 미지급, 유류비 등 미지급, 가격협상난항으로 인한 토공사 및 골조업 체결정 지연 등이라고 증언한 점, 설령 초기 토공사 등의 경우에 비나 눈으로 인하여 공사가 더디 진행된 부분이 있다고 하더라도 일반적으로 수급인이 공사도급계약상 공사기간을 약정함에 있어서는 통상 비가 와서 정상적으로 작업하지 못하거나 동절기간 동안 공사를 진행하지 못하는 것까지 감안하여 계약에 반영하는 점 등을 고려할 때, 앞서 인정한 사실만으로는 강우 및 적설이 공사 현장 여건과 결합하여 계약당사자들이 예측할 수 없었던 불가항력 사유에 해당한다고 보기 어렵고, 달리 이를 인정할 증거가 없으므로, 위 사유로 지체상금의 감액사유로 삼을 수 있을지언정 지체상금의 면책사유로 삼을 수 없다고 할 것이다. 따라서 원고의 이 부분 주장은 이유 없다.

D. Judgment on the Plaintiff’s assertion of reduction of liquidated damages

The plaintiff asserts that the compensation for delay is scheduled to pay damages, and that the compensation for delay against the plaintiff should be reduced because it is unfairly excessive.

Unlike other camping projects, it is reasonable to reduce the compensation for delay to the extent of 85 per cent of the total private project cost, considering all the circumstances revealed in the pleadings of this case, such as the fact that the construction site is located in the mountain sloping and the construction site is likely to cause difficulties in carrying out construction, such as that the construction site is difficult to have access to the construction site, unlike the construction in the flat. Furthermore, the average temperature is low compared to the other areas in the winter. However, the project in this case appears to have set a comprehensive construction period without considering the characteristics of each camping site. However, it is reasonable to reduce the compensation for delay to the extent of 85 per cent of the total private project cost. Therefore, it is reasonable to reduce the compensation for delay to the Chuncheon Camp project to the extent of 37,484,474,486,4786,47,476,476, etc. (i.e., the compensation for delay).

However, in the case of Asan Camps construction, it is difficult to recognize that the compensation for delay is excessive beyond the scope of ordinary people's satisfaction, and there is no other evidence to recognize it, the plaintiff's assertion in this part is not accepted.

(e)indial theory;

Therefore, the Defendant’s advanced engineering is liable to pay the Plaintiff the remainder of KRW 129,564,427, excluding the liquidated damages for delay 734,198,417, which were recognized earlier, as the liquidated damages for delay, as the payment for the unpaid construction cost, to the Plaintiff.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

The presiding judge, judge and assistant judge

Judges Dogman

Judges Kim Gin-han

1) Article 74 of the Enforcement Decree of the Act on Contracts to which the State is a Party and Article 75 Subparag. 1 of the Enforcement Rule of the same Act are 1,000 for construction works.

section 1(1) of this title.