Changwon District Court-2015-Kadan-877 ( October 16, 2017)

The method of settling the claim for construction price between joint contractors and the contractor;

Where an agreement is reached that each member of the joint contractor shall obtain rights to the contractor directly in accordance with the ratio of shares in the contract price claim, the individual member shall acquire the contract price claim corresponding to the ratio of shares of each contractor against the contractor regardless of the extent of the actual construction work is performed.

Article 665 of the Civil Act (Time to Make Remuneration)

Changwon District Court 2017Na52372

AA Construction

Korea

Changwon District Court Decision 2015Kadan87687 Decided February 16, 2017

September 28, 2017

November 9, 2017

1. The defendant's appeal is dismissed.

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

3. Paragraph 1 of the order of the first instance judgment was amended as follows in accordance with the reduction of claims in the trial.

The defendant shall pay to the plaintiff 179,416,50 won with 3.36% interest per annum from January 3, 2015 to December 15, 2015, and 15% interest per annum from the following day to the date of full payment.

1. Purport of claim

The same as paragraph 3 (the plaintiff reduced the part of the claim for delay compensation as above in the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

This court's explanation on the "basic facts" and "decision on the defense prior to the merits of the case" is the same as the corresponding part of the judgment of the court of first instance, except that the "total amount of 9,874,182,90 won" in Part 3 of the judgment of the court of first instance is "amount of 9,874,843,90 won" in Part 3 of the judgment of the court of first instance, and therefore it is citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The parties' assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

According to the Plaintiff’s completion of the instant construction project, the Defendant is obligated to pay the Plaintiff the construction cost incurred after the second anniversary of the date of the examination of completed the second construction contract ( March 31, 2014). Nevertheless, the Defendant failed to recover KRW 179,416,500 from the advance payment claim to be recovered from BB Construction, a joint contractor, and the said amount was set off against the balance of the construction cost and did not pay the remainder of the construction cost. Accordingly, the Defendant is obligated to pay the remainder of the construction cost to the Plaintiff, as well as damages for delay.

2) The defendant's assertion

According to the legal principles on the withdrawal of members of a cooperative under the Civil Act, a specific partner will lose his rights and obligations as a member in the future, and does not affect any bonds or obligations already established prior to his withdrawal. Furthermore, according to the Act on Contracts to Which the State is a Party, the Enforcement Decree of the same Act, and the guidelines for the operation of joint contract rules of the Ministry of Finance and Economy, part of a joint supply and demand organization that the Defendant must consent can withdraw. As such, the settlement period due to the withdrawal of a joint supply and demand organization of BB construction shall be May 22, 2014 that the Defendant approved the change of the equity interest rate. Therefore, since the second joint supply and demand organization’s withdrawal date of BB construction ( March 31, 2014), the portion of the construction price that the Plaintiff acquired from BB construction from April 1, 2014 to May 22, 2014 (i.e., 809,94,9000 won) is to be reverted to BB construction without being paid to the Plaintiff’s construction, 19709,40960,605 billion.

B. Determination

1) As to the base point of time for the settlement of construction cost

On May 19, 2014, the Plaintiff and BB Construction requested the Defendant to change the share ratio of the instant construction. The Defendant approved the change in the share ratio on May 22, 2014 is as seen earlier. However, in light of the following circumstances acknowledged by the health class, Gap, 4, 5, 6, 7, 10, 11, 17, and Eul, 2, 3, 4, 13, 18, 19, 22, 23, and the overall purport of the first instance court’s fact-finding and pleadings, it is reasonable to deem that the Plaintiff and the Defendant agreed to settle the accounts for the construction price following the change in the share ratio as of March 31, 2014, which is the base date of the second instance examination.

(1) In the contract for construction works between a joint contractor and a contractor, where an agreement is made to have each member of a joint contractor acquire rights to a subcontractor directly in accordance with the ratio of shares in the contract for construction works, barring special circumstances, such as the agreement that the actual performance of the construction works by individual members of the joint contractor shall be subject to the acquisition of the claim for construction works in proportion to their ratio of shares, or the agreement that the membership shall be removed and removed from the joint contractor on the ground of the failure to perform the construction works by some members, the individual members shall acquire the portion equivalent to their shares in the contract for construction works in relation to the subcontractor regardless of the actual performance of the construction works to a certain extent (see Supreme Court Decision 2012Da107532, Feb. 28, 2013).

With respect to the instant case, the Plaintiff and BB Construction specified their respective investment ratios to the Defendant at the time of concluding the first and second construction contracts, and submitted an application for the payment of the consideration set forth by the members of the joint supply and demand contractors, and the payment of the consideration was agreed to be made individually to the members of the joint supply and demand contractors. In addition, the Plaintiff and BB Construction received advance payment from the Defendant according to their respective investment rates and submitted advance payment guarantees respectively. In light of the aforementioned circumstances, barring any special circumstance, the claim for construction payment against the Defendant under the second construction contract is in principle divided into the Plaintiff and BB Construction, a joint supply and demand contractor, and the share ratio. Accordingly, the Defendant also paid the construction payment to the Plaintiff and BB Construction in accordance with their respective investment shares (50%) until the second completion payment of the second construction contract was made.

② However, it is reasonable to view that BB construction agreed to withdraw from the joint supply and demand company and perform the remaining construction works exclusively by the Plaintiff, and that the Plaintiff agreed to change the share ratio as follows, and that the Defendant did not pay the remaining construction cost according to the share ratio (50%, respectively, of the Plaintiff, BB construction) or the share ratio after the approval of the change (71.592%, BB construction 28.408%) prior to the approval of the change, and that the Plaintiff would pay 100% of the remaining construction cost to the Plaintiff who actually performed the remaining construction work. In other words, unlike the share ratio indicated in the form, it is reasonable to view that the said parties agreed to acquire all the remaining claims after the settlement of accounts, there were special circumstances under which the Plaintiff agreed to acquire all the remaining claims after the settlement of accounts.

③ On May 16, 2014, when filing an application with the Defendant for a change in the share of the members of a joint contractor, the Plaintiff: (a) determined the share of the Plaintiff as 100% for the portion of the construction project (a total of KRW 5,611,740,00 in the first and second construction costs; (b) up to the time the second construction project is paid until the payment for the completed portion is made, on April 17, 2014) based on the amount of KRW 9,874,84,843,843,90-5,61,740,90 (the amount before the request for a change in the design was made on or around April 17, 2014); (c) revised the Plaintiff’s respective share of the construction project to KRW 50%; and (d) 4,263,103,99,00 in the remaining construction costs (i.e., 9,874,990-5,700).

As of March 31, 2014, the Plaintiff and BB Construction entered the standard of change in the investment share ratio into KRW 5,611,740,00,00 of the pre-execution contract amount (Evidence A 4-9) in the statement of change in the investment share ratio (Evidence No. 4-9), which is the time when the second construction contract was paid for the completion of the second construction contract of this case, among the total construction amount of the construction contract of this case including the first construction contract of this case, the amount of the pre-execution contract of this case, which falls under the construction contract of this case, until March 31, 2014.

④ On May 22, 2014, the Defendant changed the Plaintiff’s share ratio from 50% to 71.592%, and the BB construction’s share ratio from 50% to 28.408%. This, unlike the share ratio applied by the Plaintiff based on the total construction additional note, constitutes either the Plaintiff and BB construction’s share ratio up to 50% until the second progress payment is made in accordance with the standard of 4,059,11,890 won (the amount before the request for an increase in design modification was made in April 17, 2014), and thereafter, the remaining Plaintiff’s share ratio up to 100%. Ultimately, the Defendant did not approve the Plaintiff and BB construction’s share ratio without examining the share ratio applied for a change, but appears to have actively accepted the above share ratio at the time of the second progress payment as to the second construction amount, and thus, it appears that it was at the time of acceptance.

⑤ According to the foregoing change in the equity ratio as seen above, BB Construction more than KRW 2,805,805,870,500 equivalent to the share ratio of KRW 5,611,740,00,000, which was the time when the second progress payment was made until March 31, 2014, in excess of KRW 3,064,970,50 (the first construction cost + KRW 1,652,745,500 + advance payment + KRW 600,000 + KRW 136,115,100 + KRW 90,128,400 + KRW 221,958,275 + KRW 364,2325,2525). Therefore, the Defendant was entitled to receive advance payment.

(6) The Defendant paid the construction cost on the premise that the Plaintiff independently completed the third installment period under the second construction contract, while paying the third installment period to the Plaintiff. On August 27, 2014, the staff member of the Seoul Local Government Procurement Service, who belongs to the Defendant, returned KRW 259,10,500 to the Plaintiff on August 27, 2014, the amount of the advance payment should be refunded to the Plaintiff according to the withdrawal from the middle of BB construction. However, although BB construction was paid to the subcontractor, the amount of KRW 179,416,500, excluding the advance payment paid to the subcontractor.

7) On July 17, 2014, the Seoul Regional Tax Office notified the Construction Mutual Aid Association that if BB construction fails to return advance payment, it would claim advance payment from the said Mutual Aid Association, and submitted official documents prepared by the Seoul Regional Public Procurement Service (Evidence 17-5) attached thereto, and the "Review on Settlement of Prepaid Payment related to the withdrawal from among the members of the joint contractors (Evidence 17-5)" indicated that the base date for the adjustment of equity ratio is March 31, 2014, and that the contract amount of KRW 4,509,11,890 at the early withdrawal is KRW 4,467,647,00 won around April 17, 2014. The second construction contract changed the equity ratio to KRW 6,108,508,000 around May 28, 2014 to KRW 301,000,000 as the base date for the above adjustment of equity ratio.

In addition, DPY revealed that the balance of the advance payment to be recovered from BB construction is KRW 179,416,500 from the "BP Review (Evidence No. 17-7)" attached to DPPP that was sent to Construction Mutual Aid Association around September 18, 2014, and that it was also 179,416,500. In the above procedure, the Defendant filed a claim for the deposit against Construction Mutual Aid Association for the reasons that BB construction was not carried out as advance payment, but the Construction Mutual Aid Association rejected its payment.

(8) In principle, a joint supply and demand organization composed of the Plaintiff and BB construction is a joint supply and demand organization that receives a contract for work jointly and has the nature of a partnership under the Civil Act, and where a partner withdraws from a partnership, the calculation due to the withdrawal between the withdrawing party and the remaining party shall be made by returning in cash the amount equivalent to the withdrawing party’s share out of the partnership’s property assessed on the basis of “the status of the partnership’s property at the time of withdrawal” pursuant to Article 719(1) and (2) of the Civil Act, barring any special circumstance (see Supreme Court Decision 2008Da41529, Sept. 25, 2008). However, it is not a mandatory provision excluding any special agreement between the parties, and if there are special circumstances, such as the parties enter into an agreement on the settlement of the settlement amount at a specific time prior to the withdrawal, the settlement made pursuant to the agreement shall be valid. Therefore, it may be possible to adjust the rate of contribution on May 22, 2014.

2) Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff the remainder of the construction cost under the second construction contract and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, within the scope of the average loan interest rate of the Bank of Korea under Article 59 of the Act on Contracts to Which the State is a Party, from January 34, 2015, the delivery date of a copy of the complaint of this case, to December 15, 2015 (see, e.g., Supreme Court Decisions 3.36% per annum requested by the Plaintiff, and 15% per annum from the next day to the date of full payment (see, e.g., Supreme Court Decision 2006Da15500, Apr. 1, 2014 to the date of approval for withdrawal from BB Construction of the Defendant, which is in excess of the Plaintiff’s share of the construction price, and the Defendant’s assertion that the Plaintiff was making unjust enrichment by receiving the construction

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance, which has concluded as a result of the reduction of claim in the trial, is just, and the defendant's appeal is dismissed, and it is so decided as per Disposition. However, the decision of the court of first instance was modified as per Disposition 3 according to the reduction of claim in the trial.