2017Na20082 Construction Price

Corporation A

Yong-Nam

Gwangju at the place of service

C Representative Director

Attorney Park Dong-chul, et al., Counsel for the defendant-appellant-appellant

Corporation B

Residential City

D Representative Director D

소송대리인법무 법인 새녘 담당변호사 최원경

Daegu District Court Decision 2016Gahap2273 decided December 15, 2016

August 31, 2017

October 12, 2017

1. The plaintiff's appeal and the conjunctive claim added in the trial are all dismissed.

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

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff the amount of KRW 420,00,000 and the amount calculated at the rate of 15% per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment (the plaintiff claimed the above amount as construction cost at the first instance court, but added the preliminary claim seeking the same amount as return of unjust enrichment at the first instance court).

1. Basic facts

The following facts are not disputed between the parties, or can be recognized in full view of the purport of the entire pleadings in each entry of Gap evidence of 1 to 7 and Eul evidence of 1 to 4 (including the number of branches).

(a) Conclusion, etc. of a contract for construction works;

1) On December 11, 2013, the Plaintiff entered into a supply contract with the Defendant to complete the construction cost of KRW 1 billion for the construction work of the hallways of six capital complexes implemented in Chungcheongbuk, etc. (hereinafter “instant construction”). The Plaintiff completed the construction work around May 2014.

2) Meanwhile, the Defendant, at the request of E, remitted the instant construction to the East Industry Account KRW 60 million on March 24, 2014, KRW 360 million on April 7, 2014, and KRW 420 million on the aggregate (hereinafter “instant KRW 420 million”).

(b) Confirmation of relevant civil cases and decisions of compulsory conciliation;

1) On October 6, 2014, the Plaintiff filed a lawsuit seeking payment of KRW 592,750,000, including the instant construction cost, against the Defendant as the resident stay support support of the Daegu District Court 2014Gahap5247, and filed a lawsuit seeking payment (hereinafter referred to as “related private case”).

2) On January 22, 2015, the Plaintiff received the instant construction cost of KRW 420 million among the instant construction cost, and the Plaintiff did not receive the remainder of KRW 170,292,226, excluding the instant KRW 420,000,000 among the said KRW 592,750,000, thereby reducing the claim that the Plaintiff sought payment of KRW 170,292,226 and damages for delay.

3) In the relevant civil case on January 22, 2015, the said court rendered a decision in lieu of conciliation that “if the Defendant pays 120,000,000 won to the Plaintiff by March 31, 2015, and delays the payment thereof, the Defendant shall pay 20% delay damages per annum to the Plaintiff. The Plaintiff waives the remainder of claims,” and the prior decision on compulsory adjustment was served on the Plaintiff and the Defendant around that time, and the related civil case was concluded as of February 11, 2015.

(c) Criminal cases related to E and the progress of such criminal cases;

1) On May 22, 2015, with respect to the instant KRW 420 million, the Defendant (E) was indicted on the charges, etc. on the ground that the Defendant (E) transferred KRW 420 million out of the instant construction cost to the Dong-type Industrial Account used by the Defendant, as material price, to the Dong-type Industrial Account used by the Defendant, with regard to KRW 420 million as to the instant KRW 420,000,000,000,000 to the Defendant’s KRW 20,000,000,000, using it as a personal debt, etc. for the Defendant’s representative director A (Plaintiff).

2) On November 5, 2015, the said court rendered a judgment not guilty of the facts charged of the embezzlement, premised on the status of the custodian, that it cannot be deemed that E entrusted the right to receive the instant construction cost by the victim A, a corporation, and received the said KRW 420 million.

3) The Prosecutor appealed from the Daejeon High Court (Cheongju) No. 2015No177 regarding the above judgment, and the Defendant (E) was working for the instant construction in the position of management director of the Co., Ltd. in relation to the embezzlement at the appellate trial. While the representative director of the Co., Ltd. was working for the instant construction in the position of management director A of the Co., Ltd., he received the progress payment to be received from the victim Co., Ltd. (E and received it directly from the victim Co., Ltd. and received it from the victim Co., Ltd. to be used for personal repayment without compensation, etc., and deceiving the B Co., Ltd.’s employees’ name in distress, thereby deceiving him from the victim Co., Ltd. on two occasions on March 24, 2014 and April 7, 2014, and acquired it by transfer of KRW 420 million from the victim Co., Ltd. to the same industry account used by the Defendant. The crime was added as a preliminary charge.

4) On May 12, 2016, the above appellate court rendered a loan of KRW 65 million from the Defendant (E) to the Defendant Company A with the name of the contract with B as collateral for the above loan loan, and the Defendant agreed to pay the progress payment pursuant to the above contract to B to the Defendant Company A. The Defendant voluntarily received the progress payment to the employees of the Company B as the management director and the general manager of the Company A, and used the progress payment to the Defendant Company B at his own discretion, and used the progress payment amount of KRW 420 million at a place unrelated to the instant project. The victim Company A did not delegate the authority to receive the progress payment from the Defendant to the Defendant. Thus, the lower court found the Defendant guilty of the Defendant as to the charge of embezzlement and embezzlement of the victim (the victim’s primary property).

5) The Defendant (E) appealed to the above judgment by Supreme Court Decision 2016Do7451, but on October 27, 2016, the said judgment became final and conclusive as it is (hereinafter “related criminal case”).

2. Judgment as to the main claim

A. The plaintiff's assertion

In the relevant civil case, the Plaintiff deemed that the instant KRW 420 million was paid for the construction cost of this case, taking into account the relevant criminal cases, and withdrawn the lawsuit on the said money and claimed only the remainder of the unpaid public money. However, in the relevant criminal case thereafter, the said KRW 420 million was determined not to be the public money of this case but to be the money obtained by deceiving and deceiving the Defendant. Therefore, the Defendant is still obligated to pay it to the Plaintiff since there is still a KRW 420 million out of the obligation for the construction cost of this case, and thus, the Defendant is obliged to pay it to the Plaintiff. Moreover, separate from the relevant civil case, the purport of the instant claim and the grounds for the claim were specified to the extent that the scope of the trial can be specified, and thus, the judgment of compulsory mediation of the instant KRW 4220,000,000, which is the remaining portion, does not have res judicata effect.

B. Determination

First, as to whether the primary claim of this case conflicts with the res judicata effect of the previous compulsory mediation decision

However, insofar as a lawsuit seeking performance of part of a claim is not clearly stated that the remainder is reserved and only a part of the claim is claimed, res judicata effect of the final and conclusive judgment extends to remaining claims after the claim is made (see, e.g., Supreme Court Decision 92Da33008, Jun. 25, 1993). However, if it is clearly stated that a part of the claim is a claim, res judicata effect of the final and conclusive judgment on the part of the claim does not extend to remaining claims. In such a case, it is unnecessary to clearly state that a part of the claim is requested by specifying the whole claim amount and reserving the remainder of the claim, and it is not necessary to clarify that the remaining claim was made by the method of specifying that the claim is a part of the claim and that the objection was made by the final and conclusive judgment No. 360, Dec. 36, 198; and it is sufficient to view that an objection raised by the final and conclusive judgment No. 2065, supra, as well as that of the parties to the lawsuit that part of the claim.

On the other hand, the above legal principle as to res judicata of a final and conclusive judgment on a partial claim is equally applicable to cases where a decision in lieu of conciliation on a partial claim has become final and conclusive. Thus, insofar as a lawsuit seeking performance of a part of a divisible claim is filed and the remainder is reserved and only a part of a claim is claimed, the res judicata effect of the final and conclusive conciliation in lieu of conciliation is limited to a remaining claim, and thus, the remaining part cannot be separately claimed.

In the case of this case, as seen earlier, the Plaintiff’s claim is a claim for the construction cost of KRW 170,292,226, which is the unpaid portion of the construction cost of this case, and the primary claim of this case is a claim for the construction cost of KRW 420,000,000,000, which is the unpaid portion of the construction cost of this case. Thus, the primary claim of this case constitutes a part of the household claim which was capable of filing a lawsuit in the relevant civil case. However, in the relevant civil case, the Plaintiff withdrawn the part of the claim while the construction cost of KRW 420,00,000 was not paid, and did not specify the purport that it would be reserved and claimed in preference to the remaining claim. As such, res judicata effect of the previous compulsory adjustment decision in the relevant civil case extends to the entire claim for the construction price

Therefore, the Plaintiff’s primary claim and seeking the payment of the construction cost of KRW 420 million in the instant case, which is the remaining claim excluded from the claim for the construction cost of the relevant private case, conflicts with the printing power of the previous compulsory mediation decision, and therefore, the Plaintiff’s primary claim is without merit.

3. Determination on the conjunctive claim

A. The plaintiff's assertion

The Plaintiff, while being aware that the Plaintiff received reimbursement for the instant KRW 420 million claims in the relevant private case, was erroneously aware that the Plaintiff incurred property loss equivalent to KRW 420 million in the amount of KRW 420 million due to the Plaintiff’s withdrawal of the lawsuit through modification of the purport of the claim, etc., and thereby, the Defendant exempted the Defendant from liability equivalent to KRW 420 million. This constitutes a benefit obtained without any legal ground, and thus, the Defendant ought to return the benefit to the Plaintiff as unjust enrichment.

B. Determination

Even if the Plaintiff withdraws the lawsuit on the claim for the part of KRW 420 million in the relevant private case, and the claim was reduced, and the decision of compulsory adjustment excluded therefrom became final and conclusive, resulting in the Plaintiff’s loss of property equivalent to KRW 420 million and the Defendant’s discharge of liability equivalent to the same amount, it shall be deemed as a result of the Plaintiff’s failure to make a claim for the remaining portion excluded from the claim for construction price of the relevant private case due to res judicata effect arising from the final and conclusive decision of compulsory adjustment as seen earlier, as seen in the part regarding the judgment on the main claim, as seen earlier, as seen in the part regarding the judgment on the previous claim, as seen earlier, as seen above, the res judicata effect arising from the final and conclusive decision of compulsory adjustment cannot be said to constitute a benefit obtained without any legal ground.

4. Conclusion

Therefore, the plaintiff's main claim and the conjunctive claim added in the trial should be dismissed for all reasons. Since the judgment of the court of first instance as to the plaintiff's main claim is just, the plaintiff's main claim is dismissed for all of the conjunctive claims added in the plaintiff's appeal and the trial, and it is so decided as per the text.

Kim Jong-chul (Presiding Judge)

The grandchildren Hospital; and

[Judgment]