Tae Young River Co., Ltd. (Law Firm Mission, Attorney Park Jong-sik, Counsel for the defendant-appellant)

Co., Ltd.

July 18, 2018

Daejeon District Court Decision 2016Gahap103128 Decided January 26, 2018

1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed

The defendant shall pay to the plaintiff 369,959,00 won with 6% interest per annum from October 7, 2016 to August 22, 2018, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's incidental appeal and the defendant's remaining appeal are all dismissed.

3. (a) In accordance with the application for the return of provisional payments, the Plaintiff shall pay to the Defendant 113,107,112 won and the amount calculated by applying each rate of 5% per annum from March 2, 2018 to August 22, 2018, and 15% per annum from the following day to the date of full payment.

B. The defendant's remaining provisional payment claim is dismissed.

C. The above paragraph (a) can be provisionally executed.

4. 30% of the total costs of the lawsuit (including the cost of filing an application for the return of provisional payments) shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 507,90,000 won with 6% interest per annum from October 7, 2016 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the court of first instance is modified as follows. The defendant shall pay to the plaintiff 334,536,910 won with 6% interest per annum from October 7, 2016 to January 26, 2018, and 15% interest per annum from the next day to the day of full payment.

3. Purport of incidental appeal;

Of the judgment of the first instance, the part against the plaintiff corresponding to the amount to be additionally paid shall be revoked. The defendant shall pay to the plaintiff 34,485,00 won with 6% interest per annum from October 7, 2016 to January 26, 2018, and 15% interest per annum from the next day to the date of full payment.

4. Purport of request for the return of provisional payments

As a result of the return of provisional payments, the Plaintiff shall pay to the Defendant the amount of KRW 151,708,143 as well as 6% per annum from March 2, 2018 to the date of the instant judgment, and 15% per annum from the next day to the date of full payment.

1. Basic facts

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, and this part is cited in accordance with the main text of Article 420 of the Civil Procedure Act.

2. Summary of the parties' arguments

A. The plaintiff

The mining area construction industry, which is the contractor of the instant construction, delayed the payment of the subcontract price to the Plaintiff who is the subcontractor at least twice, and did not issue a payment guarantee letter of subcontract price. Accordingly, the Plaintiff requested the Defendant, who is the contractor, to pay the subcontract price directly. Thus, the Defendant is obligated to pay KRW 57,90,000,000 for the subcontract price payable to the Plaintiff pursuant to Article 35(2)3 and 5 of the Framework Act on the Construction Industry (hereinafter “subcontract”) around the contrary, pursuant to Article 14(1)3 and 4 of the Fair Transactions in Subcontracting Act.

B. Defendant

1) The mining area construction industry did not perform the construction stipulated under the special agreement under Article 40 of the General Conditions of the instant contract, and the Plaintiff did not perform the shipment site construction work and the capital construction of the instant factory during the subcontracted construction work from the mining area construction industry. Therefore, the instant construction work was not completed. Accordingly, the Defendant is not obliged to pay the Plaintiff the subcontract price.

2) Even if the Defendant is liable to pay the subcontract price to the Plaintiff, the Plaintiff paid KRW 738,937,090 out of the Defendant’s obligation to pay the construction price for the mining area construction industry, Han Industrial Co., Ltd. (hereinafter “Korea-Japan Industry”), as well as Il-man Co., Ltd. (hereinafter “K-U”) to the Plaintiff as the subcontractor of the instant construction project, and KRW 738,937,090, out of the Defendant’s obligation to pay the construction price for the mining area construction industry, the Plaintiff extinguished due to repayment.

3) [Offset of Claim] Since the Defendant has the following claims against the mining area construction industry, it can be asserted against the Plaintiff by offsetting the claim against the mining area construction industry by the automatic claim against the amount equal to the claim for the construction cost of this case (which is equivalent to the following claims shall be deducted from the unpaid construction cost of the mining area):

A) The mining area construction industry did not perform the construction work that stipulated the special terms and conditions of Article 40 of the General Conditions of the instant contract. The mining area construction industry recognized as KRW 67,556,000 as the costs of the unbuilt construction work. As such, the Defendant offset the damage claim in lieu of the defect repair equivalent to the above amount against the claim for the construction cost of the mining area construction industry in this case with automatic bonds.

B) Since the Defendant paid 63,00,000 won for ready-mixed which the mining area construction industry did not pay to Korea, according to the decision substituting the adjustment, the claim for indemnity that was acquired with the above ready-mixed payment shall be offset against the claim for the construction price of this case for the mining area construction industry.

C) The Defendant has a claim for liquidated damages for the amount of KRW 65,835,00 as of the 38th day of delay from June 21, 2016 to July 29, 2016 for the mining area construction industry. Thus, the Defendant’s automatic claim shall be offset against the claim for the construction price of the mining area construction industry in this case.

3. Determination as to the claim

A. Determination on the cause of the claim

1) Relevant statutes

Article 14(1)3, Article 13(1) and (3) of the Subcontract Act provide that where a contractor fails to pay a subcontractor two or more installments of the subcontract price to the subcontractor (contractor), the subcontractor (contractor) shall pay the subcontract price directly to the subcontractor corresponding to the part that the subcontractor performed when the subcontractor requests a direct payment of the subcontract price.

2) Determination as to the existence of direct payment obligation of subcontract consideration

With respect to the instant case, the Plaintiff, a subcontractor of the instant construction project, filed a claim for the payment of subcontract consideration under the first and second subcontract consideration in three sequences from March 31, 2016 to July 26, 2016. The mining area construction industry paid only part of the subcontract consideration claimed as such to the Plaintiff. The Plaintiff, on two occasions on July 29, 2016 and September 22, 2016, did not directly claim payment of the subcontract consideration amounting to KRW 57 billion [2.45 billion for the subcontract consideration payable to the mining area construction industry (= KRW 495 billion for the instant subcontract) to the Defendant, who is not obligated to directly pay the subcontract consideration amounting to KRW 1.5 billion for the instant case, and the Defendant, who is not obligated to directly pay the subcontract consideration amounting to KRW 1.5 billion for the instant construction project under the Act on the Construction Industry, is not obligated to pay the subcontract consideration amounting to KRW 1.66 billion for the instant case’s subcontract consideration amounting to KRW 1.5 billion.

B. Judgment on the defendant's argument

1) Determination on the assertion on the failure to complete construction works

A) Although the construction work is suspended during the course of the construction work and fails to complete the last process scheduled to be completed, it is reasonable to interpret that the construction work has been completed in accordance with the terms and conditions of the contract and its main structure has been completed as agreed upon. However, if it is required to compensate due to incomplete works, it is reasonable to interpret that the construction work has been completed but it is only a defect in the object. Whether the last process has been completed must be objectively determined in light of the specific contents of the contract and the good faith principle without asking for the contractor’s assertion or the completion inspection conducted by the contractor. Such standard is likewise applicable to the agreement on compensation for delay, which has the nature as the liquidated damages for delay due to the contractor’s completion of the work (see Supreme Court Decision 97Da23150, Oct. 10, 1997, etc.).

B) As to the instant case, the health department, mining area construction industry did not perform the construction works as stipulated in Article 40(4) of the General Conditions of the instant contract, and the fact that the construction cost under the instant contract was determined, including the price for the said construction works (the Plaintiff asserts that the said general conditions clause is invalid as it violates Article 22(5)1, 3, and 4 of the Framework Act on the Construction Industry, but the said general conditions clause is not in violation of the said provision, as long as the said general conditions clause was already stipulated at the time of the conclusion of the instant contract, it is difficult to view the said provision as being in violation of the said Act), and the fact that the Plaintiff failed to perform the shipping site construction work and the capital construction work, does not conflict between the parties (However, there is dispute between the parties

However, the aforementioned facts and evidence Nos. 23, 24, 26, 30, 37, and Eul’s evidence Nos. 4 and 11, together with the overall purport of oral arguments, are as follows. ① The defendant applied for approval of the use of the factory of this case on July 29, 2016 to the Mayor Seosan for approval of use on August 8, 2016. ② The construction cost under the instant contract was determined to be paid within 30 days after the completion of construction (Article 40 subparag. 4 of the General Conditions of the instant contract) and the construction work was decided to be executed after the completion of construction (the defendant obtained approval for use of the factory of this case for the construction of this case after the completion of construction of the construction work of this case). The circumstances that the construction work of this case was not completed within 30 days prior to the completion of construction work of the construction work of this case, and thus, the defendant did not appear to have been separately determined within 60 days prior to the completion of construction work of the construction work of the construction work of this case.

2) Determination on the assertion of repayment

A) According to Article 14(2) of the Subcontract Act, when a subcontractor makes a lawful request for direct payment under Article 14(1) of the same Act, a subcontractor’s right to demand direct payment to the subcontractor arises, and at the same time a subcontractor’s right to demand direct payment to the subcontractor and a subcontractor’s right to demand payment to the subcontractor is extinguished. In such cases, a contractor’s right to demand direct payment to the subcontractor is transferred to the subcontractor without maintaining the identity of the subcontractor’s right to demand payment to the subcontractor, and the subcontractor may oppose the subcontractor on the grounds that the subcontractor may oppose the subcontractor before the subcontractor’s right to demand direct payment arises, but in principle, the subcontractor cannot oppose the subcontractor on the grounds that occurred to the subcontractor after the subcontractor’s right to demand direct payment occurred (see Supreme Court Decision 2013Da81224, 81231, Aug. 27, 2015, etc.).

B) As to the instant case, the fact that the construction cost under the instant contract was determined as KRW 1.1 billion (excluding value-added tax), and that the Plaintiff requested the Defendant to pay the subcontract price directly on October 6, 2016 is acknowledged as seen earlier, and that the Plaintiff paid KRW 809,937,090 in total to the mining area construction industry and its subcontractor from March 21, 2016 to June 30, 2017 according to the overall purport of the statements and arguments as indicated in the following table:

On March 21, 2016, 100,00,000 mining area construction industry; on April 4, 2016, 2016; on May 12, 2016, 10,000, mining area construction industry 100,000,000; on May 30, 2016, the mining area construction industry 200,000,000,000; on May 30, 2016; on June 7, 2016, the mining area construction industry 10,000,000,000,000; on June 7, 2016; on June 15, 2016; on 10,000,000; on June 3, 200, 2000; on June 15, 2016, the mining area construction industry 1000,008.

However, among the above construction costs, with regard to each of the above amounts stated in the No. 9 through No. 13 of the above table that the defendant paid to mining area construction industry, etc. after the above date of request for direct payment, the defendant cannot claim that the above amount was paid to the plaintiff, and the No. 6 amount is insufficient to recognize that the above amount was paid in relation to the construction of this case only with the statement No. 12 of the No. 12, and there is no evidence to recognize otherwise. Therefore, as of the date of request for direct payment, the defendant's obligation to pay the construction cost to the mining area construction industry as of the date of request for direct payment exceeds the above amount of 535,000,000 won after deducting the total of the construction cost stated in the above table No. 1 through No. 5,77,000,000 won, and this part of the defendant's assertion is with merit within the scope of recognition.

3) Determination of the offset defense based on the damage claim in lieu of defect repair

On September 12, 2016, when the mining area construction industry renounces the construction stipulated in the above special agreement and did not perform the construction works as stipulated in Article 40(4) of the General Conditions of the instant contract, the construction cost under the instant contract includes the price for the construction works as stipulated in Article 40 of the said special agreement, and the fact that the mining area construction industry did not perform the construction works as stipulated in Article 40(4) of the said special agreement is acknowledged. According to the evidence No. 20, the Plaintiff can be found to have prepared and executed a written waiver of construction works, stating the amount of the construction cost as stipulated in the said special agreement as KRW 67,556,00. According to the above facts, it is reasonable to view that the non-construction works equivalent to the portion for which construction works as stipulated in Article 40(4) of the General Conditions of the instant contract are not performed, appears to have been acquired in lieu of the defect repair claim corresponding to the said amount.

Therefore, as seen in subparagraph 5(A)(1)(i) of the instant claim for the construction cost of the mining area construction industry against the Defendant, the instant claim for the construction cost of this case remains in an offset upon the arrival of the due date on July 29, 2016, which was completed by the instant construction project. Since it is apparent in the record that the Defendant served the Plaintiff on April 2, 2018, a duplicate of the statement of grounds for appeal in which the Defendant expressed his/her intent to offset the said both claims against the Plaintiff on an equal amount, the instant claim for the construction cost of this case had been extinguished within the extent equal to the Defendant’s above damage claim, retroactively from July 29, 2016, which is the above offset date. Ultimately, the instant claim for the construction cost of this case remains in an offset amounting to KRW 467,44,00 (=535,000,000 - 67,56,000). The Plaintiff’s direct claim for the payment of subcontract to the Defendant is a offset against the said Plaintiff.

4) Determination on the counterclaim by the claim for indemnity

A) The Defendant asserts to the effect that, in relation to the instant construction project, the contractor has jointly and severally guaranteed the liability for the price of ready-mixed for the Korea Mining Area Construction Industry, and that, upon the application for the payment order for the Korea-Japan Industry, the Korea-Japan Industry has acquired the claim for indemnity equivalent to the same amount as the mining area construction industry by subrogated the above joint and several liability amounting to KRW 63,00,000 for the Korea-Japan Industry upon the application for the payment order for the Korea

B) Where a contractor bears the obligation to pay a subcontract price directly to a subcontractor under Article 14(2) of the Subcontract Act, a contractor’s claim for the work price against a subcontractor who falls under the part for which the subcontractor directly assumes the obligation to pay the subcontract price is transferred without maintaining the identity, and the subcontractor may oppose the subcontractor on the ground that the subcontractor may oppose the subcontractor before the subcontractor’s direct claim for payment occurs (see, e.g., Supreme Court Decision 2013Da8124, 81231, Aug. 27, 2015). Thus, where the contractor’s automatic claim for the subcontractor exists and the automatic claim has a simultaneous performance relationship with the subcontractor’s claim for the work price, the subcontractor may assert the right to defense of simultaneous performance and the subcontractor’s right to claim for payment can be set off against the subcontractor (see Supreme Court Decision 200Da31274, Mar. 27, 201; Supreme Court Decision 2001Da327164, Mar. 4, 2007).

C) Comprehensively taking account of the respective descriptions in evidence Nos. 7, 12, 18, and 19 and the purport of the entire pleadings, around March 1, 2016, the Defendant jointly and severally guaranteed the obligation to pay ready-mixed for the Han-Industrial Complex Construction Industry in relation to the instant mining area construction project; on September 5, 2016, the Korea-Japan demanded the Defendant to pay the unpaid mining area construction industry; on the other hand, the Defendant filed an application for a payment order against the Korea-Japan mining area construction industry and the Defendant as Seoul Central District Court Decision 2017M4658, Apr. 17, 2017; on the other hand, the Defendant had a decision to substitute conciliation with the Seoul Central District Court Decision 2017M4658, Apr. 23, 2017; on the other hand, the Defendant paid KRW 100,000,000,000,000 for the Korea-Japan Industry according to the aforementioned contents of the decision.

D) Examining such facts in light of the aforementioned legal principles, the Defendant, as a joint and several surety for the mining area construction industry, acquired a claim for indemnity amounting to KRW 63,00,000 for the mining area construction industry by subrogated to the mining area construction industry as above. The instant claim for the construction cost and the Defendant’s claim for indemnity amount arising from the relationship between the construction contract of this case and the mining area construction industry, are in consideration for each other. As seen earlier, it is reasonable to determine the relation in performance. On the other hand, around October 6, 2016, a joint and several surety contract for the Defendant’s one-day industry was established for the relevant party, which is the basis for the Defendant’s claim for reimbursement, as well as for the Defendant’s joint and several surety contract for the mining area construction industry, even if the Defendant’s claim for indemnity amount for the mining area construction industry was created after the Plaintiff’s direct claim, it is reasonable to view that the Defendant may oppose the Plaintiff as a offset against the claim for reimbursement against the mining area construction industry.

E) Therefore, the instant claim for the construction cost of this case expired within the extent equal to that of the Defendant’s claim for reimbursement. Ultimately, the instant claim for the construction cost of this case remains more than KRW 404,44,00 due to set-off (i.e., KRW 467,44,000 - KRW 63,000). The Defendant’s above assertion has merit.

5) Determination on the counterclaims against set-off based on the claim for liquidated damages

A) First, we examine the existence and amount of the Defendant’s claim for delay against the mining area construction industry.

(1) The construction cost under the instant contract is KRW 1.1 billion (excluding value-added tax) and the scheduled completion date of construction works, respectively, determined on May 15, 2016, and the rate of liquidated damages for delay is KRW 1.5/100, respectively. Article 9(3) of the General Conditions of the instant contract provides that the mining area construction industry is completed and the date a written request for completion inspection is made to the Defendant. The fact that approval for use was made on August 8, 2016 upon the application for approval for use filed on July 29, 2016 for the instant factory is as seen earlier. According to the foregoing facts, it is reasonable to deem that the mining area construction industry requested completion inspection to the Defendant from the time when the said application for approval for use was filed. As such, the completion date of the instant building is deemed as July 29, 2016 pursuant to Article 9(3) of the said General Conditions.

(2) Meanwhile, considering the following circumstances as a whole, comprehensively taking into account the basic facts, Gap evidence Nos. 20, 21, and 22, the testimony of the non-party witness of the first instance court, the fact inquiry results by the court of first instance on the Seosan City and the purport of the entire pleadings, it is reasonable to deem that the defendant agreed with the mining area construction industry to extend the construction period under the instant contract by July 10, 2016.

① Under the instant contract, the construction period had been from March 7, 2016 to May 15, 2016. The Defendant filed an application for permission to construct the instant factory with the Mayor Seosan City for permission for the alteration of the construction site (the permission to extend the “mam” to the factory on the ground of the land of ○○-ri ( Address omitted), which was scheduled to be constructed up to the “Mandong,”) and obtained permission on April 21, 2016. On April 29, 2016, the Defendant filed a report on the alteration of the construction site (contractor) with the contractor from ASEAN Construction Co.,, Ltd. to the mining area construction industry, and the said report was accepted on May 26, 2016. Moreover, the Defendant filed an application for permission to alter the construction site on June 30, 2016, which was subsequent to the expiration date of the said contract, and received the alteration of the construction site on the first floor and the first floor to 2016.

② At the time when the mining area construction industry started the instant construction work, the Defendant did not obtain a construction permit for the instant factory, and the design drawings issued by the Defendant to the mining area construction industry while entering into the instant contract appears to have not completed detailed matters.

③ On June 10, 2016, the completion date of the instant subcontract was concluded after the completion date of the instant subcontract, and the completion date of the instant subcontract was July 10, 2016. In this regard, the Nonparty, the employee of the mining area construction industry, at the site manager of the instant construction site, testified to the purport that “the Defendant had extended the construction period twice to the extent that it was difficult for the Defendant to meet the construction period. At the time of the instant subcontract, it would be appropriate for the Defendant and the Defendant to conclude the said subcontract. At the time of the instant subcontract, it would be possible for the Defendant to confirm the construction period to meet the construction period, and it would be appropriate for the said date. At the time of the instant subcontract, the Defendant would be able to confirm the construction period to meet, and the accurate date would not be memory, but would complete the construction by setting the last day of June or the last day of July.”

(3) Therefore, barring any special circumstance, the mining area construction industry is obligated to pay 34,485,000 won with compensation for delay due to delay in completion of construction works for 19 days from July 11, 2016, following the date of expiration of the construction period, which was extended to the Defendant, from July 29, 2016 to July 29, 2016 (i.e., total construction cost of KRW 1.20 million x 1.5/1000 x 1.5/1000 x 19 days) (the Plaintiff asserts that there was no cause attributable to the mining area construction industry for delay of the construction project in this case on the ground that there was a change in the construction permit matters several times, but the Defendant and the mining area construction industry have agreed to extend the construction period by reflecting the change in the construction permit matters. Thus, it cannot be deemed that there was no cause attributable to the mining area construction industry as to the failure to complete the construction project in the above extended construction period).

(4) Meanwhile, in applying the provision on liquidated damages for delay, Article 27(2) of the General Conditions for the Contract of this case provides that “where “A” uses all or part of the objects of construction in accordance with Article 23, the amount equivalent to that portion shall be deducted from the contract amount.” The Defendant asserts that, even around July 25, 2018, before filing an application for approval for use, when the steel-frame construction of the factory of this case is carried out by installing painting facilities within the building of this case and using the factory of this case, such as the use of the factory of this case, etc., the compensation for delay corresponding thereto shall be deducted. However, the testimony of the Nonparty’s witness of each video and the first instance trial of evidence Nos. 31 and 39 are insufficient to acknowledge the Plaintiff’s assertion, and there is no other evidence to acknowledge it otherwise

(5) In addition, the Plaintiff asserts that the agreement for liquidated damages as above was unfairly excessive as liquidated damages. However, in light of the status of the mining area construction industry, purpose and content of the contract, motive scheduled for liquidated damages, the ratio of estimated amount of debts to the amount of debts, circumstances where the Defendant extended the original scheduled construction period twice, and transaction practices, etc., it cannot be deemed that the payment of liquidated damages would result in the loss of fairness by imposing unfair pressure on the mining area construction industry in light of the general social norms. Thus, the Plaintiff’s assertion on this part is without merit.

B) Furthermore, on July 29, 2016, the instant construction cost claim against the Defendant in the mining area construction industry and the Defendant’s mining area construction industry, as seen earlier, were in a set-off position upon the arrival of the due date, and the Defendant’s declaration of intent to set off both the instant claims against the Plaintiff on an equal amount, is apparent in the record that the duplicate of the instant reply was served on the Plaintiff’s legal representative on December 21, 2016, and thus, the instant compensation claim for delay was extinguished within the extent equivalent to the Defendant’s above damage claim retroactively to July 29, 2016, which is the date of the set-off. Ultimately, the instant compensation claim for delay remains more than KRW 369,959,00 (=404,444,000), -34,485,000,000 due to the set-off.

C. Sub-committee

1) The Defendant bears the obligation to pay the subcontract price directly within the scope of the obligation to pay the mining area construction industry (Article 9(3) of the Enforcement Decree of the Subcontract Act). The Defendant bears the obligation to pay the subcontract price directly to the Plaintiff within the scope of KRW 369,959,00 for the mining area construction industry.

2) Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 369,959,00 and the damages for delay calculated by the ratio of 15% per annum under the Commercial Act from October 7, 2016, which is the date when the Defendant directly requested payment, to August 22, 2018, which is the date when the judgment was rendered, to the effect that the Defendant disputes over the existence and scope of the obligation to pay to the Plaintiff.

4. Determination as to the application for the return of provisional payments

A. As seen earlier, since the plaintiff's claim against the defendant against the defendant is justified only within the extent of the above recognition, part of the judgment of the court of first instance is revoked, the sentence of provisional execution of the court of first instance is partly invalidated by the judgment of this court.

B. In full view of the following purport: (a) the Plaintiff collected KRW 2018, 50235, and 50334, respectively, from the Industrial Bank of Korea, which was the garnishee, upon receipt of a collection order, as the title of execution, the Plaintiff collected KRW 493,707,045, and KRW 19,036,8735, and KRW 573, on March 2, 2018, respectively, from the Industrial Bank of Korea, which was the garnishee, with the title of execution of the judgment of the first instance.

As above, the amount of provisional payment collected by the plaintiff by the plaintiff exceeds 39,636,806 won [the principal = 369,959,00 won + 369,959,000 won + 69,959,000 x 6% x (1 + 123 days/365 days), and 100 won] of the total amount of principal and interest collected by the plaintiff by February 6, 2018.

Therefore, the Plaintiff is obligated to pay to the Defendant damages for delay calculated at the rate of 14,070,239 won (=4,707,045 won in excess of the provisional payment collected by the Plaintiff) + 19,036,873 won in the provisional payment collected by the Plaintiff as requested by the Defendant, and as requested by the Defendant, from March 2, 2018, which is the date of receipt of the final provisional payment, to August 22, 2018, the scope of the Plaintiff’s obligation to return the provisional payment from March 22, 2018 to August 22, 2018, the amount of five percent per annum as stipulated in the Civil Act, and from the next day to the date of full payment, the amount of damages for delay calculated at the rate of 15 per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, respectively.

5. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no reason. Since the judgment of the court of first instance is unfair with a different conclusion, part of the defendant's appeal shall be accepted, and the part against the defendant exceeding the part ordering payment among the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed, and the defendant's claim for the return of provisional payment shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no reason for the plaintiff's incidental appeal and the defendant'

Judges Jeon Soo-jin(Presiding Judge)(Presiding Judge)

1) Although the Defendant asserted that the first instance court paid KRW 809,937,090, the purport of the appeal was changed to the effect that the Defendant paid KRW 738,937,090 in this court.

2) In the first instance trial, the Defendant alleged that the above non-construction cost was KRW 150 million, but the court concluded that the above non-construction cost was KRW 67,56,000 and changed the purport of the appeal.

3) In the first instance court, the Defendant asserted a set-off based on the claim for delay compensation amounting to KRW 142,00,000, KRW 129,937,50, and KRW 65,835,00 in reserve in the second instance, but the Defendant changed the purport of the appeal by asserting a set-off based on the claim for delay compensation amounting to KRW 65,835,00 in the second instance.

4) The Defendant changed the purport of the appeal while it was not the amount repaid in 11,00,000 won out of the amount set forth in Nos. 6, but maintained the remainder of 937,090 won.

Note 5) The amount of the claim set forth in Seosan District Court Decision 2018 Tasan 50334 was KRW 18,876,540, or the Plaintiff collected KRW 19,036,873 by calculating the interest by March 2, 2018, the date of payment.

(6) The Defendant sought an amount at the rate of 6% per annum under the Commercial Act from March 2, 2017 to August 22, 2018, which is the date the judgment of this court was rendered. However, the duty to restore following the invalidation of a provisional execution declaration cannot be deemed as an obligation arising out of a commercial activity or an equivalent obligation, and thus, the damages for delay should be governed by the statutory interest rate under the Civil Act, and the statutory interest rate under the Commercial Act does not apply (see Supreme Court Decision 2003Da52944, Feb. 27, 2004).