2014Da63131 and Costs of Goods

1. A;

2. B

3. C.

4. D;

5. E.

F

Seoul Central District Court Decision 2013Na56876 Decided August 7, 2014

2015,2.12

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

The grounds of appeal are examined.

1. Based on its employment evidence, the lower court: (a) concluded that the Defendant, on July 26, 201, entered into the Seongbuk-gu Seoul, J, and K. Ground Urban Housing Construction Corporation (hereinafter “instant construction”) within 1.27 billion won; and (b) subcontracted the instant construction to the Plaintiff, including the Plaintiff, within 190 days from the date of removal of the construction period; (c) on May 10, 201, the Defendant could not complete the instant construction work; and (d) determined that the Plaintiffs, including the Plaintiff, were not able to receive new construction cost 4.6 million won (value-added tax); and (e) the Defendant would not be able to receive new construction cost 20 million won (value-added tax); and (e) the Defendant would not be able to receive new construction cost 200,000 won (value-added tax); and (e) the Defendant would not be able to receive new construction cost 30,000,000 won (value-added tax) for each of the instant construction work.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In full view of the evidence duly admitted, the following facts are revealed.

1) In relation to the case in which the plaintiffs filed a complaint against the defendant in fraud, the defendant stated that the investigative agency stated that "the defendant would pay the construction cost according to the contract, which is the contractor, to the effect that "the defendant will pay the construction cost in accordance with the contract," as it means that "the representative director I of G and the sewage officers, including the plaintiffs, will be responsible for the construction cost in the presence of the representative director I of G and the plaintiffs."

2) The Defendant and G settled the construction cost on April 11, 2013. According to the settlement statement, the total construction cost was calculated as KRW 870 million, and the Defendant paid KRW 894,949,400 to G in excess of the total construction cost.

3) In the above statement of settlement of accounts on April 11, 2013, the "total takeover details" includes the details of sub-subcontracts, the construction cost, the total amount of construction cost (360 million won) and the names of sub-contractors in relation to the construction cost that the Defendant directly pays to the sub-contractors. The plaintiffs' names are not included herein.

4) On April 22, 2013, G: (a) on April 22, 2013, G: (b) the Defendant issued a payment guarantee to re-subcontractors; (c) G consented to the Defendant’s direct payment guarantee; (d) however, G sent a written confirmation to the Defendant’s office with the agreement to attach G’s confirmation; (b) however, the Defendant’s direct payment guarantee amount that does not exist is not allowed to be deducted from the total construction cost; (c) the Defendant’s demand for payment is always required to obtain a written confirmation; (d) the total construction cost is KRW 870 million; (e) the amount deposited to G and/or KRW 5265 million; and (e) the unpaid amount is KRW 344 million; and (e) the amount should not be deducted from the total amount of G’s revenue unless there is a written confirmation; and (e) the said amount should be attached with G’s confirmation.

5) On the other hand, on November 2012, G: (a) around 201, 11, 11 re-contractors, such as P, Q, R, S, T, U, V, W, X,Y, and Z; (b) G drafted “written confirmations on the direct payment of re-subcontracts,” or “written guarantees,” with the content of re-subcontracts; (c) around November 27, 2012, the Defendant drafted a “written contract to directly make the payment of the re-subcontracts to the said 11; (d) the amount of each quasi-contractor’s paid note or written guarantees prepared and made by the Defendant for each of the sub-subcontractors is equal to the amount of two hundred and thirty million won, which is not included in the total amount of the payment statement prepared and made by G; and (e) the amount not included in the account settlement statement made by the Defendant to the KRW 15,3300,00,00,000.

6) Of the failure to pay the statement of April 11, 2013, the sum totaling KRW 363,80,000,000,000,000 for the Defendant’s payment angle or contract to the sub-contractor 11, and the amount that does not overlap with the amount of a direct payment confirmation or payment guarantee letter of G or a payment guarantee letter of G, is KRW 20,50,000,000,000 for re-contractor A, AA,B, or AC that performed the aggregate construction, KRW 60,000,000,000 for household appliances, and each of the above amounts exceeds KRW 25,33,00,000,000,000 for the Defendant’s payment note or contract statement, and the sum exceeds KRW 34,40,000,000,000 for the Defendant’s construction price as stated in the content certification of April 22, 2013.

B. In light of the following facts, the Defendant stated that the Defendant would be liable for the construction cost again on the 20th day of November 2012, G representative director and sub-contractors, including the Plaintiffs, would be liable for the instant construction cost according to the contract. The Defendant stated that the Defendant would pay the construction cost directly to the subcontractor by the 14th day of November 27, 2012, which goes beyond the total construction cost of the 1st day after the 1st day of the 20th day of the 1st day of the 20th day of the 1st day of the 20th day of the 20th day of the 1st day of the 20th day of the 1st day of the 1st day of the 20th day of the 2nd day of the 1st day of the 2nd day of the 1st day of the 2nd day of the 2nd day of the 1st day of the 2nd day of the 1st day of the 2nd day of the 2nd day of the 1st day of the 2nd day of the 3th day.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

The presiding judge shall keep the record of the Justice

Justices Min Il-young

Chief Justice Park Jong-young

Justices Kim Jae-han