1. The appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

Claim: the defendant.

1. On July 17, 2017, the Plaintiff made a contract (hereinafter “the instant construction contract”) with a fixed amount of KRW 56 million (the maximum amount of KRW 16 million shall be paid at the time of the contract, and the remainder of KRW 40 million shall be paid at the time of the contract) to the Defendant, a company engaging in the soil construction business, which established retaining walls and reinforcement soil, from July 2, 2017 to August 30, 2017, and the construction cost of KRW 56 million (from July 22, 2017 to August 30, 2017). ② The Plaintiff transferred KRW 16 million to the Defendant’s account on July 18, 2017; ③ The instant construction contract was executed on behalf of Nonparty D, who borrowed the name of the Defendant from the Defendant, and the representative director was actually trying to perform the construction work on behalf of the Defendant; and ③ The Plaintiff did not have any dispute over the remainder of the construction cost of KRW 40,000,07.7.

2. (1) According to the facts of recognition as to the Plaintiff’s claim, even though the Plaintiff requested the Defendant to implement the instant construction contract on or around August 2017, the Defendant, unlike the contract, would commence the instant construction work if it first pays KRW 40 million, which is to be paid in accordance with the progress ratio of construction work under the instant construction contract, and refused the construction work. This constitutes refusal as it requires the Plaintiff to perform the obligation without any ground to pay the remainder that is not the obligation of prior performance, and refuses to perform the obligation of the Defendant.

Therefore, pursuant to the proviso of Article 544 of the Civil Act, the Plaintiff cancels the instant construction contract without the peremptory notice of implementation.