1. The plaintiff's claim is dismissed.

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

Facts of recognition

On April 6, 2015, the Plaintiff entered into a contract with Nonparty C Co., Ltd. (hereinafter referred to as “Nonindicted Co., Ltd.”) to subcontract the construction work of the AL board to the contract amount of KRW 913,000,000 during D Corporation. On May 31, 2015, the Plaintiff entered into a contract for extending the construction period by November 30, 2016.

(hereinafter collectively referred to as “instant subcontract”). On April 23, 2015, and June 27, 2016, Nonparty Company issued a letter of guarantee (guarantee amounting to KRW 91,300,000) that guarantees the performance of the instant subcontract from the Defendant, and issued it to the Plaintiff.

(hereinafter “this case’s guarantee agreement”). However, the non-party company discontinued the subcontracted construction due to default, and the Plaintiff terminated the instant subcontract on July 11, 2016, and concluded a new subcontract agreement with the non-party E on the non-party E regarding the non-execution portion of the instant subcontract.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4 (including the number of branch offices), the purport of the whole pleadings, the allegations by the parties concerned, and the plaintiff's assertion by the parties concerned that the subcontract of this case was terminated due to the non-party's non-party's non-party's non-party's default, causing damages to the plaintiff. Since the defendant guaranteed the contract performance by the non-party company, the defendant is liable to pay the plaintiff

Since the Plaintiff did not issue the payment guarantee corresponding to the contract guarantee letter of the non-party company, the Defendant is not liable for the contract guarantee pursuant to Article 13-2 of the Fair Transactions in Subcontracting Act.

Judgment

Article 13-2 (8) of the former Act on Fair Transactions in Subcontracting (amended by Act No. 14456, Dec. 20, 2016; hereinafter referred to as the "former Subcontract Act") provides that "The principal contractor's right to claim against the subcontractor for the performance guarantee of the subcontractor under paragraph (1) shall be guaranteed unless the principal contractor guarantees the payment of the construction price under paragraph (1) or (2).