Suwon Construction Co., Ltd. (Attorney Kim Jong-chul, Counsel for defendant-appellant)

Korea Power and Equipment Construction Financial Cooperative

DaN Co., Ltd. (Law Firm New LLC et al., Counsel for the defendant-appellant)

December 18, 2009

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 1,533,042,50 won with interest rate of 20% per annum from the day after the delivery of a copy of the complaint to the day of complete payment.

1. Basic facts

(a) Contract for a construction work;

(1) On March 1, 2005, Non-party Korea Heavy Power Generation Co., Ltd. (hereinafter “Korea Heavy Power Generation”) contracted to the Plaintiff the installation of the nitrogen oxides Reduction Facilities of the Boan Power Power Plant 3-6.

(2) On June 30, 2005, the Plaintiff entered into a contract on June 30, 2005 with the Defendant’s Intervenor’s Intervenor (hereinafter “ Intervenor”) under which the period of construction of machinery, pipes, and steel framed during the construction of the said paragraph (1) was fixed from June 30, 2005 to May 31, 2007, and the construction cost is KRW 10,093,000 (excluding value-added tax; hereinafter the same shall apply) and the main contents thereof are as follows.

Article 2 (Payment of Price)

(2) Partial amount: Payment after confirmation of the nature within ten days from the date on which the application for gender is filed (request for gender: On the basis of a month).

Matters other than the above conditions may be specified and attached under special conditions, and matters not specified in special conditions shall be supplemented by the terms of the "standard subcontract agreement for construction works" enacted by the Fair Trade Commission, provided that the priority of application is in the order of this contract, other documents, and the standard subcontract for construction works.

Article 4 (Contract Performance Guarantee)

10% of the contract amount (1,10,230,000 won): Provided, That the contract deposit shall be a penalty for breach of contract, and the intervenor shall pay the full amount of the contract deposit to the plaintiff, regardless of the rate of fairness when the contract is violated.

Matters other than the above conditions may be specified and attached under special conditions, and matters not specified in special conditions shall be supplemented by the terms of the "standard subcontract agreement for construction works" enacted by the Fair Trade Commission, provided that the priority of application is in the order of this contract, other documents, and the standard subcontract for construction works.

(2) The main contents of the standard subcontract agreement of construction works included in the terms and conditions of the instant subcontract are as follows.

Article 14 (Change or Suspension of Construction Work)

(1) Where the details of construction are modified or added or the construction work is temporarily suspended at the request of the project owner, his/her design change, etc., the Plaintiff shall deliver a modified contract, etc. to the intervenors in advance.

(4) The plaintiff shall pay an increased portion of construction works additionally executed by the intervenor according to the direction of the plaintiff, even though the plaintiff was not increased by the project owner.

(5) No intervenor may demand a change in the contract amount or refuse construction on the grounds that the contract conditions remain undeveloped, dumping acceptance, etc. after concluding a contract other than the grounds for adjusting the contract amount specified in Article 14 or 15.

Article 15 (Change of Contract Amount Due to Price Fluctuations)

(1) Where the plaintiff receives an adjustment of the contract amount from the ordering person due to changes in the prices or charges of items after the conclusion of the contract, etc., if additional expenses are required for the completion of an object for the same reason, he/she shall pay the intervenor a adjusted contract amount according

(2) Even if the contract amount is not adjusted by the project owner, the Plaintiff may make a separate agreement through mutual consultation to pay the adjusted contract amount when there is a sudden change in the price or charge of the items contained in the calculation sheet.

Article 17 (Inspection and Delivery)

(1) Upon receipt of a request from an intervenor for an inspection completed or a completion inspection, the plaintiff shall conduct such inspection immediately in accordance with the inspection criteria and method prescribed in Article 9 (1) of the Fair Transactions in Subcontracting Act, and shall notify the intervenor of the result of inspection in writing within ten days unless there is any justifiable reason not to do so. If the plaintiff fails to notify within ten days, the inspection shall be deemed to have passed.

(2) A notice of passing an inspection under paragraph (1) shall be deemed delivered to the Plaintiff, and the Plaintiff shall immediately accept the notice.

Article 20 (Payment of Price)

(1) The plaintiff shall pay a price to the intervenor within a period not exceeding 60 days from the date of payment determined by the deadline.

(3) Where the Plaintiff pays the price as a bill, the bill shall be discounted at a financial institution established under the legal provisions, and the discount charge for the period from the delivery date to the maturity date of the bill shall be paid to the Defendant on the day when the bill is issued.

Article 25 (Cancellation and Termination of Contracts)

(1) Where a plaintiff or intervenor falls under any of the following subparagraphs, the plaintiff or intervenor may cancel or terminate all or part of the relevant contract when the contract is not performed within the specified period after peremptory notice was given in writing for the performance of the contract within the specified period:

1. Where the plaintiff or intervenor is deemed unable to achieve the purpose of the contract in violation of the terms and conditions of the contract;

3. Where it is impossible for the plaintiff to complete the construction work due to the violation of the terms and conditions of the contract without justifiable grounds;

4. When the intervenor has failed to commence the construction even after the lapse of the period for commencement stipulated without any justifiable reasons;

(4) Where the plaintiff cancels or terminates the contract due to the grounds under each subparagraph of paragraph (1), the intervenor shall implement the following matters:

1. He/she shall suspend construction works for the portion in receipt of the cancellation notice and remove all construction-related facilities, equipment, etc. from the construction site;

(5) An intervenor may claim damages against the plaintiff when any damage was incurred as a result of the rescission or termination of a contract under paragraph (1).

(3) After that, the Plaintiff and the Intervenor entered into a modified contract with the construction cost of KRW 12,010,000,000 (hereinafter “the first modified contract”) on October 7, 2005.

B. The bidding between the Plaintiff and the Intervenor regarding the increase in construction price

(1) On February 16, 2006, the Intervenor submitted to the Plaintiff a quantity chart, including the modification of 83 items, such as Mali Ange Angeor Hole, etc. Around February 16, 2006, the Intervenor submitted a quantity chart, etc. Around February 28, 2006, the Intervenor requested the settlement of construction costs incurred due to design change, air extension, etc., and on March 23, 2006, the Intervenor notified the Plaintiff that “after March 31, 2006, it would be difficult to suspend work if the Intervenor did not accept the Intervenor’s request,” and again on March 31, 2006, the Intervenor notified the Plaintiff that it would no longer be expected to continue work, considering the situation where the Plaintiff would only request consultation without presentation of specific amount.”

(2) On April 3, 2006, the Plaintiff proposed a consultation on the discontinuance of construction to the intervenors, and notified the Intervenor that if there is no active response by the Intervenor, the Intervenor should be deemed to waive the construction and proceed with the termination of the contract. On April 5, 2006 and April 6, 2006, the Plaintiff notified the Intervenor that “if the construction is not resumed by April 10, 2006, it shall be deemed to be the waiver of the contract and the contract is terminated without any separate notice.”

(3) On April 8, 2006, a meeting was held in the presence of Nonparty 1, the representative director of the Intervenor, and Nonparty 2, the Plaintiff, and the Intervenor, who are the regular directors of the Plaintiff. On the other hand, the Plaintiff and the Intervenor agreed to resume the construction and make joint efforts to increase the construction cost in the future. Accordingly, the Intervenor resumed the construction from April 10, 2006.

C. The Plaintiff’s payment of construction cost and the conclusion of the second modified contract after the resumption of construction work

(1) After the agreement of April 8, 2006 with the Plaintiff on April 24, 2006, the Intervenor filed a 1,094,64,64,2300 won with the Plaintiff for the examination of gender, and the Plaintiff filed a claim for direct construction cost of KRW 1,094,643,00 with the payment for the completed portion ( KRW 202,831,751, KRW 50, KRW 246,650,723, KRW 65, KRW 623, KRW 1,245,541, etc.). The Plaintiff paid the direct construction cost of KRW 1,299,013, KRW 876 ( KRW 33,064, KRW 230, KRW 556, KRW 31456, KRW 655, KRW 6415, KRW 245,541, May 26, 2005).

(2) On May 26, 2006, the Intervenor filed a claim for KRW 2,892,876,79,000 in total of KRW 8,626,793,00 in total, and KRW 1,312,876,00 in direct construction cost ( KRW 57,174,216 in total, KRW 659,540, KRW 459,540, KRW 50 in total, KRW 194,153,50 in total, and KRW 1,580,00 in total, and KRW 1,892,876,00 in total, and KRW 2,00 in total, KRW 2,892,876,00 in total,0 in total, and KRW 36,09 in total, KRW 415,07,00 in total, KRW 20 in total, KRW 200 in total, KRW 636,2965,2565.26

(3) On June 26, 2006, the intervenor filed an application for the examination of the completed portion on the twelve occasions, and filed a claim for the payment of KRW 1,413,00,00 directly with the pertinent completed portion ( KRW 282,117, 401, 912, 523, etc.). On July 27, 2006, the plaintiff filed a claim for the direct construction cost of KRW 700,000 ( KRW 282,117, 402, 606, 62,625, etc.).

(4) On July 31, 2006, upon filing an application for the examination of the nature of the intervenor, the intervenor claimed KRW 10,742,00,000 for the previous stage and KRW 2,102,00,000 for the pertinent progress payment (such as KRW 4,52,917,404, etc.). On August 10, 2006, the plaintiff refused the examination of the nature of the contract, stating that the amount of the progress payment requested by the intervenor exceeds the contractual content, and it is impossible to pay the amount that exceeds the contractual content, and that the contract would be amended as soon as possible for smooth construction management.

(5) On August 23, 2006, when applying for the re-examination of the 13th time period, the intervenor claimed KRW 1,204,50,000 for the pertinent progress payment, and KRW 1,204,50,000 for the pertinent progress payment (No. 4 period 612,839,818, etc.), but the Plaintiff, while failing to modify the contract, directly assessed the construction cost as KRW 667,50,00 (No. 4 period 75,839,818, etc.) and paid it as bills on September 28, 2006.

(6) On September 22, 2006, the Intervenor filed an application for the examination of the nature on September 14, 2006, and claimed KRW 11,409,500,000 for the previous period and KRW 537,00,000 for the payment for the completed portion, but the Plaintiff refused the examination of the nature.

(7) After that, the Plaintiff and the Intervenor entered the date of the contract on January 26, 2007 as of December 29, 2006, and written a contract to change the contract amount to KRW 15,330,425,000, in an electronic document, and signed both parties electronically (hereinafter “the second modified contract”).

(8) Meanwhile, until August 2006, the intervenor completed the construction of the period of 3,5, and 6 during the instant construction from March 21, 2007 to May 29, 2007.

(d) Claim for 14, 15 installments and the re-suspension of construction works;

(1) On January 29, 2007, immediately after the conclusion of the second amendment contract, the intervenor filed an application for the second completion inspection with the Plaintiff again 1,409,50,000 won, and 1,371,60,000 won (180,952,414 won, 49, 298,58,5888,509,908 won, 610,908 won, respectively, and then filed an application for the second completion payment at a fair rate. On February 28, 2007, the plaintiff sent the completion payment at KRW 507,00,00,000 to the intervenors and notified the intervenors of the final completion payment at KRW 1,371,60,00.

(2) On March 6, 2007, the Intervenor sent to the Plaintiff a certificate of content to the effect that “The amount of the modified contract was concluded on December 29, 2006,” stating that “The Intervenor requested lump-sum payment at the time of advance payment with respect to the part of the enforcement and the completion of the enforcement, and that “The amount of the advance payment at the time of advance payment is requested to pay the actual cost according to the terms agreed upon by both companies on April 2006.”

(3) On March 8, 2007, the Intervenor filed an application for the inspection of completed portion with the Plaintiff on 15th time, and filed an application for the payment of completed portion according to the progress rate with each of the 11,916,50,000 won and the 943,500,000 won for completed portion in the previous time (No. 49,124,578,381, etc.).

(4) The Plaintiff refused to pay the part-time payment to the Intervenor, and the Intervenor suspended the construction from March 27, 2007, and accepted both the employees at the construction site.

(5) On March 30, 2007, the intervenor sent the following content-certified mail to the Plaintiff, which had no choice but to suspend the construction from March 27, 2007.

① The Intervenor requested consultation with the Plaintiff on April 2006 because he/she is unable to cope with cumulative factors in the course of performing the construction work. Based on the facts of the accounting document and the Intervenor’s detailed budget for the implementation of the construction work in the future, the Intervenor presented to the Plaintiff on April 2006 that construction cost of approximately KRW 6.1 billion is insufficient until the completion of the construction work based on the Intervenor’s detailed execution plan. The Plaintiff promised to enter into a contract with the Plaintiff to modify the amount of KRW 3.8 billion for the change of design, delay compensation

② However, the Plaintiff entered into a modified contract with only KRW 1.9 billion among them, and even though the Plaintiff requested the preferential payment of the construction cost that was executed as originally agreed upon, the Plaintiff was consistent with the deferment of payment to put the Intervenor at a more pressure, and thus, the Plaintiff’s trust in the Plaintiff was disappeared.

E. Plaintiff’s notice of termination of contract

(1) On March 27, 2007, the Plaintiff requested the Intervenor to resume the construction as soon as possible by indicating that the Intervenor’s unilateral suspension of the work without official procedures, even though the Plaintiff was an urgent construction that must complete the construction within an absolute air called 65 days.

(2) Nevertheless, on March 29, 2007, the Plaintiff, on the part of the Intervenor, asked the Intervenor to resume the construction by disclosing that it is impossible for the Intervenor to hold a consultation with the Intervenor’s non-cooperation on March 29, 2007, and urge the Intervenor to present clear materials as to the Intervenor’s requirements and make mutual agreement possible.

(3) On March 30, 2007, the Plaintiff again requested an emergency meeting on the following day to the intervenors, and notified the intervenors that they should be deemed as a waiver of the construction and that the termination of the contract should proceed if there is no response by the Intervenor.

(4) Upon notification by the Intervenor to the same purport as the above paragraph (d)-5, on March 31, 2007, the Plaintiff notified the Intervenor that the contract will be terminated without any separate notice, deeming the waiver of the contract if the construction is not resumed by April 3, 2007.

(5) On April 3, 2007, the Intervenor revealed that the suspension of the work was caused by the Plaintiff’s nonperformance of the commitment, and the Plaintiff’s failure to resume the construction unless the Plaintiff first performed the contract and the terms of the agreement. On April 4, 2007, the Intervenor notified the Intervenor that the construction contract was terminated on the basis of Article 25(1) of the Standard Subcontract Agreement and each provision of the subcontract agreement.

(6) On April 4, 2007, the Plaintiff recognized 100% of the filing amount of new items added at the time of the second change (3rd S/D Delay Compensation Costs 610,989,908, 161,839,299, FCR (Additional Construction Costs) 187,94,531, 166,507,529) submitted by the Intervenor with respect to the Intervenor on April 4, 2007, “The Plaintiff did not additionally require 100% of the filing amount of the 14th written statement (14th January 2007) (24,268,734 won for the application amount for prior installation and 3-6th and 4th 6th 4th 6th 4th 620,260 ,206 , 206 , 207 , 400 , 200 , 400 , 2007. .

F. Conclusion of guarantee contracts between the intervenor and the defendant

On the other hand, the intervenor determined that the contract of this case between the defendant and the guarantee creditor, ① on July 1, 2005, the guarantee creditor is the plaintiff, the guarantee creditor is the plaintiff, the guarantee creditor is the 1,110,230,000, and the guarantee period is from June 30, 2005 to May 31, 2007; ② on October 5, 2005, the guarantee creditor is the plaintiff, the guarantee creditor is the 210,870,000, and the guarantee period is from October 7, 2005 to May 31, 2007; ③ on January 25, 2007, the guarantee creditor is the plaintiff, the guarantee creditor is the 211,942,500, and the guarantee period is the guarantee insurance contract to the plaintiff from December 29, 2006 to May 31, 207.

[Grounds for Recognition: Evidence Nos. 1 through 5, Evidence Nos. 9 through 20, each entry of Evidence Nos. 1 through 31, and the purport of the whole pleadings]

2. The parties' assertion

A. The plaintiff's assertion

Although the intervenor has a duty to complete the instant construction within the construction period under the instant subcontract contract, the intervenor demanded an increase in the construction cost without any ground, and the Plaintiff suspended the instant construction from March 27, 2007, and the Plaintiff given notice on several occasions on March 29, 2007, including March 31, 2007, but the contract was terminated by the Plaintiff’s declaration of termination on April 4, 2007, upon which the Plaintiff had no intent to resume the construction, the subcontract contract of this case was terminated by the Plaintiff’s declaration of termination. As such, the Defendant, as the guarantor, has a duty to pay the Plaintiff the total amount of the contract performance guarantee amount of KRW 1,533,042,50 ( KRW 1,110,230,000 + KRW 210,870,00 + KRW 211,942,500) and damages for delay calculated at the rate of 20% per annum from the following day to the date of complete payment.

B. The defendant and the intervenor's assertion

According to Article 25-2 (1) of the Standard Subcontract for Construction Works, which is the terms and conditions of the instant subcontract contract, the intervenor may temporarily suspend all or part of the construction work, and even if the contractor delays the obligation to pay the construction cost for the completed portion under the contract and the contractor completes the construction work, the contractor may refuse the contractor's duty to perform the construction work until such cause is resolved, if the contractor has a substantial reason to make it difficult for the contractor to perform the obligation to pay the construction cost. Since the intervenor denies the obligation to pay the construction cost in excess of the construction cost even though the intervenor has requested several times of payment of the completed construction cost, the intervenor was clearly unable to receive the construction cost even if the construction is completed, and therefore, the intervenor did not have any reason for the suspension of the construction in this case. Accordingly, the plaintiff's claim for guaranteed insurance against the defendant on the premise of the intervenor's default of obligation is without merit.

3. Determination

(a) Suspension of construction due to the payment of the construction cost;

First of all, according to Article 25-2 (1) of the Standard Subcontract Form of Construction Works (amended by Act No. 706, Jul. 30, 2006) as to whether it is possible to suspend construction works on the ground of the non-payment of the construction cost, it is acknowledged that Article 25-2 (1) of the Standard Subcontract Form of Construction Works provides that "if the plaintiff fails to pay advance payment under the terms and conditions of the contract and the completed portion, and the plaintiff fails to pay them within a reasonable time limit, the intervenor may notify the plaintiff of the suspension period and temporarily suspend all or part of the construction work." However, Article 25-2 of the Standard Subcontract Form of Construction Works is newly established on July 30, 206. The fact that the plaintiff and the intervenor entered into the subcontract of this case on June 30, 2005 is acknowledged as above. According to Article 25-3-2 (1) of the Standard Subcontract Form of Construction Works (amended by Act No. 7006, Dec. 29, 2006).

However, in general, even though the obligation to pay the construction cost and the obligation to complete the construction is not necessarily a simultaneous performance relationship in the construction work contract, the obligation of the contractor to pay the construction cost as to the completed portion of the construction work under the contract is delayed, and even if the contractor completes the construction, the contractor may refuse the obligation to complete the construction work until such cause is resolved (see Supreme Court Decision 2003Da60136, Nov. 25, 2005, etc.). Thus, in the below, it is examined whether the Intervenor delayed the obligation to pay the construction cost at the time of suspending the construction work, and whether there is a significant reason for the Intervenor to receive the construction cost from the Plaintiff even if the Intervenor completes the construction work.

(b) Whether the intervenor's discontinuance of construction has a reason attributable thereto;

살피건대, 앞서 본 사실 및 앞서 든 각 증거에 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정, 즉 ① 참가인은 2006. 2. 16.경 원고에게 암모니아 기화기 Anchor Hole 수정 등 83개 추가공사 항목에 관하여 2005. 12. 21. 기준 추가 발생된 비용을 약 20억 원으로 계산한 집계표를 제출하였던 점, ② 그 후 공사대금 추가분에 대하여 원고는 28억 원을, 참가인은 60억 원을 제시하면서 추가 공사대금에 대하여 협의를 하던 중 원고의 상무인 소외 2는 2006. 4. 8. 협의과정에서 참가인의 대표이사인 소외 1에게 당시로서는 구체적인 금액을 알 수 없는 상황이었으나 공사 종료시까지 설계변경, 물량증감, 보상비, 공기단축비용 등 공사비가 증액되기 때문에 일단 공사를 진행하고 추후 구체적인 금액에 대하여 협의를 하자고 말하였고, 그에 따라 원고와 참가인은 참가인이 공사를 재개하고 쌍방이 향후 공사대금을 증액시키는 방향으로 공동노력하기로 합의하였으며 참가인은 2006. 4. 10.부터 공사를 재개하였던 점, ③ 참가인의 공사재개 이후 원고는, 참가인이 2006. 4. 24. 제10회 기성검사를 신청할 당시 6호기에 대한 공사가 완료되었고 3호기에 대한 공사가 진행 중이었으며 5호기에 대한 공사는 착수하기도 전이었음에도 기성고와 상관없이 5호기에 대한 계약금액의 상당 부분을 지급하였고, 참가인이 2006. 5. 26. 11회 기성검사를 신청할 당시에는 3호기에 대한 공사가 완료되었고 5호기에 대한 공사가 진행 중이었으며 4호기에 대한 공사는 착수하기도 전이었음에도 기성고와 상관없이 5호기에 대한 계약금액의 100%에 해당하는 금액과 4호기에 대한 계약금액의 상당 부분을 지급하였으며, 참가인이 2006. 6. 26. 및 2006. 8. 23. 12, 13회 기성검사를 신청할 당시에도 4호기에 대한 공사는 착수하기 전이었음에도 4호기에 대한 공사대금을 역시 각 일부 지급하여 기성고와 상관없이 1차 변경계약상 공사대금 12,010,000,000원의 95%에 해당하는 11,409,500,000원을 누계 기성금으로 지급한 점에 비추어 볼 때, 원고는 2006. 4. 8.자 합의에 따라 추가 공사항목 등에 대한 공사대금 증액에 관하여 추후 변경계약을 체결하기로 하되, 변경계약을 체결하기 전 일부 추가 공사대금을 기성 공사대금의 형식으로 지급한 것으로 보여지는 점, ④ 원고는 참가인의 계속적인 변경계약 체결 요구에도 불구하고 이를 미루던 중, 원고의 직원 소외 3이 2007. 1. 23. 참가인의 직원인 소외 4에게 이메일을 통하여 변경계약 관련 내역서의 갑지(변경계약서 표지)만 보내면서 내역은 추후 보내겠으니 우선 내역서 갑지에 날인을 하여 팩스로 보내달라는 취지의 이메일을 보내고, 이에 따라 참가인은 변경계약의 내역을 구체적으로 알지 못한 상태에서 위 변경계약서 표지에 날인한 후 원고에게 다시 보내주었으며, 쌍방은 2007. 1. 26.경 2차 변경계약서를 전자문서로 작성하고 전자서명을 하였는바, 이러한 계약체결의 경위는 1차 변경계약 당시 2005. 7. 15. 피고가 합계 3,133,889,864원의 증액에 관한 견적서를 원고에게 제출하였다가 원고와 참가인의 수차례에 걸친 협의 끝에 참가인이 다시 같은 달 20. 위 금액을 19억 원으로 변경한 견적서 및 시행결의내역서 등을 제출한 후 같은 해 10. 7. 19억여 원을 증액한 변경계약서를 전자문서로 작성, 쌍방 전자서명 하기에 이르게 된 경위와 현저히 다른 점에 비추어 볼 때 위 2차 변경계약서상 각 항목의 공사비는 원고가 참가인과의 협의 없이 일방적으로 책정한 것으로 봄이 상당한 점, ⑤ 이 사건 공사는 기존에 완성하여 운전하던 보일러 가동을 잠시 중단시키고 탈질설비를 보충하여 추가시키는 공사로서, 새로운 설비의 신규 설계보다 상대적으로 더 어려워 상세설계도면의 오류, 현장여건과의 부적합, 기존 설비들과의 불일치 내지 간섭이 발생함으로써 이를 해결하기 위한 상세도면의 수정, 공장에서 이미 완성한 제조물품의 수정 내지 변경, 기존 설치물의 수정 내지 변경, 새로운 설비의 신규추가 등이 불가피하였고, 따라서 FCR(현장설계변경) 공사대금을 산출하는 비목의 성격은 최초계약서에 없는 신규비목이라고 보아야 하는데, 2차 변경계약상 83건의 위 FCR 추가공사 항목에 대한 공사대금은 187,994,531원에 불과한 반면 위 추가공사 항목에 대한 공사대금은 최초계약서를 기준으로 할 때 1,283,533,782원에 이르는 점, ⑥ 2006. 4. 8. 공사재개 합의 당시 참가인은 추가비용으로 60억 원을 요구하다가 최종적으로 38억 원의 증액을, 원고는 28억 원의 증액을 제시한 바 있는데, 참가인이 아무런 구체적인 합의도 없이 2007. 1. 23. 이메일로 제시된 19억여 원의 증액을 최종적인 변경계약금액으로 승인하였다는 것은 경험칙상 납득하기 어려운 점, ⑦ 참가인이 2차 변경계약 직후 2차 변경계약상의 금액을 초과하는 기성검사신청서 등을 제출하면서 여전히 추가 공사대금의 지급을 요구하여 온 점 등을 종합하여 보면, 2차 변경계약에서 정한 공사대금이 이 사건 공사대금을 최종 확정하는 것이라고 보기 어렵다고 할 것이고, 2차 변경계약에서 정한 공사대금이 이 사건 공사대금을 최종 확정하는 것이 아닌 이상 원고는 참가인과 사이에 추가 공사대금을 정산한 후 참가인에게 이를 지급하여야 함에도 불구하고, 참가인이 추가 공사대금을 청구한 때로부터 약 1년이 경과한 후 일방적으로 그 금액을 정하고, 참가인이 이에 이의하면서 제15회 기성금 청구를 하자 더 이상 지급할 기성금이 없다는 취지의 통보를 하면서 공사대금 지급의사가 없음을 분명히 하여, 이에 따라 참가인이 이 사건 공사 현장에서 철수하게 된 것이므로, 결국 이 사건 공사 중단에 대한 귀책사유는 원고에게 있다고 봄이 상당하고, 따라서 이 사건 공사 중단에 대한 귀책사유가 참가인에게 있음을 전제로 피고가 보증보험금을 지급할 의무가 있다는 원고의 위 주장은 더 나아가 살펴볼 필요 없이 이유 없다.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Su-cheon (Presiding Judge) and Lee Jong-jin