(a)where the performance of an obligation has been delayed, the responsibility to prove the cause for such delay;

(b) Ownership of a building completed with the contractor's efforts and materials;

A. If the performance of an obligation is delayed, the obligor bears the burden of proving the cause attributable to it, so long as the obligor delays the performance, the obligor is liable to prove that the delay has occurred due to any cause not attributable to himself.

(b)The ownership of a building completed with its own effort and materials shall belong to the contractor unless otherwise specified by a special agreement between the contractor and the contractor, or otherwise specified by other special circumstances.

Articles 387 and 664 of the Civil Act

Supreme Court Decision 82Meu254 delivered on August 24, 1982, 80Da1014 delivered on July 8, 1980

Kim Jin Construction Co., Ltd., Counsel for the defendant-appellant

Sung Industrial Co., Ltd. and one other, Counsel for the defendant-appellee

Daegu High Court Decision 77Na935 delivered on December 19, 1979

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. We examine the grounds of appeal Nos. 1 and 2 of the Plaintiff’s attorney (the grounds of appeal on the Plaintiff’s supplementary appellate brief are examined to the extent of supplement in case it was submitted after the expiration of the submission period).

(1) As to the Plaintiff’s delay of construction payment:

According to the reasoning of the judgment of the court below, the court below determined that the plaintiff entered into a construction contract for commercial apartment with the defendant Samsung Industrial Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.") on Sep. 7, 1971 and entered into a renewal contract on Apr. 20, 1972; again, the contract was amended on July 15, 1972, to determine the construction cost for the above construction cost for the above construction cost for the underground room and the second floor as KRW 160,000,00, and upon completion of the above construction, the registration of preservation of ownership of the above building was made in the name of the defendant Co., Ltd.; and the plaintiff did not complete the registration of ownership transfer when the plaintiff paid the above construction cost, but the plaintiff did not pay the above construction cost for the above construction cost for the above underground room and the above construction cost for the first and second floor as collateral; thus, the defendant Co., Ltd. did not consent to the creation of security right; thus, the court below rejected the aforementioned payment obligation of the plaintiff Co.

If the performance of the obligation is delayed, the burden of proof for the cause attributable to the obligor exists, so long as the plaintiff delayed the performance of the construction work, such as the approval of the court below, the plaintiff is responsible for proving that the delay of performance is due to any cause not attributable to himself.

According to the evidence No. 3 (Agreement) signed by the court below as of July 15, 1972, Article 2 of the agreement signed by the defendant company as of July 15, 1972 is acknowledged to have agreed that the plaintiff shall cooperate without delay in paying the construction amount by using the underground room and the 1,2-story building. Thus, in order for the plaintiff to claim that the plaintiff is not liable for delay in the performance of the construction amount due to the defendant company's breach of duty to cooperate under the above contract clause, the contents and violation

However, in the testimony of the non-party witness of the first instance trial, the defendant company refused to provide the above building in the name of the plaintiff to the bank for the plaintiff. However, there is no evidence suggesting that the content of the defendant company's duty of cooperation stipulated in Article 2 of the above agreement refers to the consent of the plaintiff to make the registration of ownership transfer and the offer of the above building in the name of the plaintiff. Thus, the testimony of the non-party cannot be proven to have violated the duty of cooperation between the plaintiff and the defendant.

Ultimately, the above judgment below is just and it cannot be said that it violated the rule of experience as to the interpretation of the agreement and the determination of evidence, or incomplete deliberation, the omission of judgment, and the burden of proof.

(2) As to the reversion of ownership of a building:

The ownership of a building completed by a contractor as his/her own effort and material under the Civil Act shall be deemed to be attributed to the contractor, unless otherwise specified by a special agreement between the contractor and the contractor (see, e.g., Supreme Court Decisions 71Da2541, 2542, Feb. 29, 1972; 80Da1014, Jul. 8, 1980).

According to the facts duly established by the court below in this case, while constructing the commercial apartment building of this case in accordance with the contract with the plaintiff as efforts and materials of the defendant company, the defendant company confirmed the construction cost of the building of the 1,200,000 underground and the 160,000,000 underground and the 1,000,000, and if the construction is completed, the registration of preservation of ownership shall be made under the above defendant's name, but if the plaintiff pays the remainder of 60,00,000,000 and interest within one month after the registration of preservation, the registration of ownership shall be completed. Accordingly, the plaintiff agreed to complete the registration of ownership transfer to the plaintiff. Accordingly, the plaintiff's name was changed to the above defendant's name on July 19, 1972, and the above construction cost of the 1,200,000,000 won was completed on September 16, 1972.

If the facts are the same as above, the ownership of the above underground room and the above ground 1 and the second floor, which the contractor completed in his effort and material, shall not be deemed to have been reverted to the above defendant.

Even if the building permit of the above building was obtained in the name of the contractor as the plaintiff as the contractor, it is not reasonable to deem that there was a special agreement between the plaintiff and the above defendant to transfer the ownership of the completed building to the plaintiff as the contractor in this case where the title of the building was changed in the name of the contractor as the contractor, and the registration of ownership preservation was completed in the name of the defendant company. In addition, even if the agreement between the plaintiff and the defendant company (Evidence A No. 3) states that the right of the above building was "transfer" to the defendant company until the completion of the above construction amount, such expression alone alone cannot be deemed as reserving the ownership of the above building to the plaintiff and making a registration in trust for the security of the construction amount.

Under the above purport of the court below, it is reasonable that the ownership of the above building belongs to the defendant company, and unlike this, the ownership of the above building belongs to the plaintiff internally, but the plaintiff's assertion that the registration of preservation is completed in the name of the defendant company in trust for securing construction funds, was rejected without the grounds, and there is no error of law by misapprehending the legal principles as to the reversion of ownership of the building under the contract, or by misapprehending the facts, as alleged in the arguments.

(3) As to the appropriation of the construction deposit with the lease deposit, etc.

(A) According to the reasoning of the lower judgment, the lower court rejected the Plaintiff’s claim that the Defendant Company had the obligation to pay the remainder to the Plaintiff, as well as that the Defendant Company has the obligation to pay the remainder to the Plaintiff, on the following grounds: (a) the Plaintiff leased the building on the ground room and the 1,200,00 won for the lease deposit and monthly rent; and (b) accordingly, the Defendant Company received KRW 427,730,00 in the amount of KRW 160,000 for the construction cost of the above underground room and the 1,200,000 for the construction cost of the 1,60,000 for the above underground room and the 1,730,000 for the remainder after deducting the electrical construction payment, management fee and public charge.

In other words, the lease of the apartment in this case was concluded under the name of the plaintiff with a lease contract between the tenant and the plaintiff deposited the lease deposit and the rent in the common ditch of the defendant company pursuant to Article 8 of the above agreement. Such agreement is based on the premise that the plaintiff paid 160,000,000 won to the above defendant within the period stipulated in Article 1 of the agreement and completed the registration of ownership transfer, so long as the plaintiff did not pay 160,000,000 won for the construction cost so far, the plaintiff lost the right to receive the lease deposit, namely, the right to receive the lease deposit and the rent, and therefore, the lease deposit received by the defendant company remains not owned by the above defendant company but for the obligation to pay to the lessee, so this agreement cannot be appropriated for the above 160,000,000 won.

(B) Examining the contents of an agreement entered into between the Plaintiff and the Defendant Company in accordance with the record, Article 1 of the Act provides that: (a) the payment period shall be KRW 160,000,000,000 for the contract amount for the construction work of underground rooms and 12 stories above ground and 1,200,000 shall be paid by the Plaintiff; (b) the balance between August 31, 1972 and the Si bank interest rate shall be paid in the name of the Defendant Company within one month after the completion of the registration for the preservation of the building; (c) the said Defendant Company shall cooperate without delay in paying the construction cost using the above building; and (d) Articles 4 and 5 shall transfer all the rights of the above building to the Defendant Company until the completion of the said contract amount to the Plaintiff; and (d) Articles 7 and 8 shall consult with each other and set the occupancy price to the Plaintiff after consultation with the Plaintiff; and (d) the Plaintiff shall always deposit the remainder of the occupancy company with the Defendant Company’s underground account after deducting the maintenance fee.

The purport of this agreement is to interpret that the plaintiff and the defendant company determined the above underground room and the above 1,20,000,000 won for the construction work of sanitation and heating and cooling, and the plaintiff can pay the above construction work to the defendant company by using the above construction work, and it is reasonable to interpret that the plaintiff jointly purchased the above building from the plaintiff and the defendant for the purpose of using the above construction work, and thereby agreed to pay the lease deposit, etc. for the above construction work. On the contrary, it is difficult to interpret that the occupancy deposit, etc. is appropriated for the above construction work after paying the above construction work deposit to the tenant in cash, and then the lease deposit, etc. is appropriated for the construction work deposit other than 160,000,000 won.

Therefore, the court below held that the agreement that the above agreement shall be appropriated for the construction fund with the lease deposit, etc. from the above agreement was based on the premise that the plaintiff first pays the construction fund of KRW 160,000,000 to the defendant company and completed the registration of ownership transfer of the building of the 1,60,000 underground and the 1,000,000 under the name of the plaintiff, and it cannot be appropriated for the above construction fund of KRW 160,00 with the lease deposit, etc. with the lease deposit, etc.

(C) However, examining the evidence of the court below in light of the records, it is recognized that the plaintiff and the defendant company agreed to jointly lease the above building to the occupants in the name of the plaintiff to appropriate for the construction cost, such as the lease deposit, etc., and the defendant company did not cooperate with the plaintiff and did not pay it as it was, and the defendant company received the lease deposit by leasing the above building in the name of the defendant company alone. Since the lease deposit received by the defendant company in its own name from the defendant company is the amount of the defendant company's obligation to return it, it cannot be deemed that the above lease deposit should be appropriated as a matter of course for the construction deposit, barring

However, even after examining the record, there is no evidence to support the fact that the above defendant's above defendant's obligation to return the lease deposit was lawfully acquired by the plaintiff, and eventually, the theory of original adjudication that the above defendant's obligation to return the lease deposit received by the above defendant cannot be appropriated for KRW 160,000,000 is just, and there is no error of law such as misunderstanding of legal principles, contradiction in the reasoning

2. We examine the third ground for appeal (to the extent of supplement in case of the plaintiff's supplemental appellate brief and the ground for appeal on this part is examined).

According to the reasoning of the judgment below, the court below determined to the effect that since the construction work was not paid to the fourth floor of the building in this case that the defendant company completed its own effort and materials, the plaintiff's assertion of ownership is unjustifiable. In light of the records, the above judgment below is just and there is no error of misapprehending the interpretation of the disposal document like the theory of lawsuit

Article 9 of the Agreement between the plaintiff and the defendant (Evidence A No. 3) states that the fourth floor should be owned by the plaintiff. However, in light of the context before and after the agreement, and the background leading up to the ownership of the building of the first and second floor, it is reasonable to conclude that the above expression means that the construction cost of the fourth floor would be owned by the plaintiff if the plaintiff would be appropriated as a occupancy deposit, as alleged in the theory of lawsuit, if the construction cost of the fourth floor would be appropriated for the original purpose of the ownership of the fourth floor. There is no argument about this point.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)