Tae Young Construction Co., Ltd. (Law Firm Dongin, Attorneys Oh In-be et al., Counsel for the defendant-appellant)

Korea Electric Power Corporation (Attorney Lee Jae-tae, Counsel for defendant-appellee)

Suwon Construction Co., Ltd. (Law Firm Chungcheong, Attorney Lee Im-soo, Counsel for defendant-appellant)

March 26, 2010

Seoul Central District Court Decision 2008Gahap72009 Decided August 26, 2009

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

2. The expenses for appeal, incidental appeal, and supplementary appeal shall be borne respectively by each person;

1. Purport of claim

A. On July 30, 2004, the Defendant: (a) confirmed that the Plaintiff succeeded to the status as a member of the other party to the contract in the contract for the “756kV New Transmission Line Construction Work (Section 2)” entered into with the Nonparty, Young-gu Co., Ltd. and the Defendant’s Intervenor with the Defendant.

B. On May 13, 2009, the Defendant confirmed that each act that the Defendant approved the withdrawal of the Young Tech Co., Ltd. from the joint supply and demand organization member in the contract for the construction of the 756kV New Power Transmission Line (section 2) around May 13, 2009 with respect to the non-party Young Tech Co., Ltd. and the Intervenor joining the Defendant is invalid.

C. On May 14, 2009, the Defendant and the Defendant’s Intervenor confirmed that the modified contract was null and void with respect to “756kV new transmission line construction work (the second section)”

(B) The court of first instance accepted the claim of the above A, rejected the claim of the above B, paragraphs (b) and (c) above, and rejected the claim of the above B, since both the plaintiff and the defendant are not dissatisfied with the claim of the above B, the claim of the above B was excluded from the object of the

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

3. Purport of incidental appeal;

Of the judgment of the first instance court, the part against the Plaintiff regarding the claim for nullification of the lower judgment is revoked. On May 14, 2009, it is confirmed that the modified contract entered into between the Defendant and the Intervenor joining the Defendant with respect to “756kV new transmission line construction (section 2)” was null and void.

1. cite the judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is that “ June 2, 2007,” which is the fourth 10th 10th 10th th th th 2 of the judgment of the court of first instance, is the same as the ground for the judgment of the court of first instance, except for adding the judgment on the argument of the Plaintiff, the Defendant, and the Intervenor joining the Defendant as set forth in the following 2, and thus, it is cited by the main text of Article 420

2. The addition;

A. The Intervenor asserts that “(1) The construction work in this case is eligible to participate in the tender, and ② the joint supply and demand organization established by the company prior to the division with the Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s joint supply and demand for the construction work in this case, taking into account the company’s ability to perform the construction work, ability, and credit rating before the division, and the joint supply and demand organization for the construction work in this case. ④ The Defendant’s Intervenor’s Intervenor’s Intervenor’s position as a member of the joint supply and demand organization is not transferred or withdrawn to a third party without the other party’s consent under Articles 11 and 12(1) of the instant joint supply and demand organization agreement. ⑤ In light of the fact that the Defendant’s major changes occur in the company’s ability to perform the construction work before the division, financial standing, etc. following the division and merger, the status of the other party to the construction contract in this case is an exclusive nature that is subject to succession to rights and duties arising from the division and merger.”

However, in the case of a division and merger, there is no express provision that the status of a joint venture of the company prior to the division or a partner of the partnership under the Civil Act is excluded from the subject of comprehensive succession, and such legal position does not seem to be continuous because of its nature, and the application of Article 449(2) of the Civil Act that limits the transfer of claims against the party's will according to the validity of partial comprehensive succession by law is excluded from the application of Article 454 of the Civil Act that limits the creditor's consent prior to the debt, and even if it is not a division and merger, there can be changes in the ability, ability, ability, and credit rating of the company prior to the division and merger. In light of the above, the status of the other party to the construction contract of this case as a partner of the company prior to the division

B. The Intervenor asserts to the effect that “The Plaintiff succeeded to the status of the other party to the contract before the division, but if some of the members of the instant joint supply and demand organization cannot perform the contract due to dishonor, etc., it may automatically withdraw from the joint supply and demand organization or withdraw from the other members by force without wanting to be members pursuant to Article 12(2) and (3) of the joint supply and demand organization agreement.”

However, the text of Article 12(2) of the above Joint Venture Agreement only stipulates that the remaining members shall jointly and severally perform the contract in case where some of the members is unable to perform the contract due to a default, etc. In such a case, the pertinent members shall not be construed to have been able to automatically withdraw from the Joint Venture, or to have their members forced withdraw. Article 12(3) of the above Joint Venture Agreement is understood as a provision premised on withdrawal by mutual consent, not by a rightful withdrawal or compulsory withdrawal. Thus, the above assertion by the Intervenor is not correct.

C. According to Article 44(1) of the General Conditions of the instant Construction Contract (Evidence No. 17), the Defendant asserts that “If the construction work is not completed or is unlikely to be completed by the deadline for completion due to a cause attributable to the party under the contract, it violates other terms and conditions of the contract, and it is deemed impossible to achieve the purpose of the contract due to such violation, the ordering person may rescind the contract if the electrical construction business operator violates the provisions of collective subcontract restriction.” The Defendant asserts that “The contract of the instant construction work may be rescinded between the Plaintiff and the Plaintiff on the grounds that the Plaintiff discontinued the instant construction work and fails to perform the duty of the steel tower, thereby preventing the achievement of the contractual purpose due to the failure to perform the duty of the steel tower,” and that the contract of the instant construction work may be rescinded by delivery of the preparatory document as of October 28, 2009 to Sam

However, the contract for the construction work of this case is concluded between the defendant and the defendant as the joint contracting party, and it is not individually concluded between the defendant and the defendant, and the defendant and the defendant. In order to cancel the contract for the construction work of this case, the defendant must clearly indicate that the contract for the construction work of this case will be cancelled between the joint contracting party and the joint contracting party, in accordance with the principle of the non-acceptance of rescission under Article 547 (1) of the Civil Code, in order for the defendant to cancel the contract for the construction work of this case, all other parties, namely, the plaintiff and the defendant to the defendant, or in relation to the plaintiff as the representative of the joint contracting party, the plaintiff will be cancelled. However, the defendant merely expressed his intention to cancel the contract for the construction work of this case only between the plaintiff and the joint contracting party, not between the joint contracting party and the plaintiff (in light of the fact that the defendant entered into the modified contract of this case with the defendant, it is clear that the defendant's opinion is invalid). Therefore, the defendant's above argument is not justifiable.

D. The Plaintiff asserts that the Plaintiff’s seeking confirmation of invalidity of the instant modified contract concluded on May 14, 2009 with respect to the construction of “756k new transmission line (section 2)” between the Defendant and the Intervenor joining the Defendant, would seek confirmation of the legal relationship between a third party, but it would bring about risks and apprehensions in the Plaintiff’s legal relationship, and thus, it would be an effective and appropriate means to eliminate existing risks and apprehensions in the Plaintiff’s legal relationship, and thus, the benefit of confirmation is recognized.”

However, as seen earlier, it was confirmed in the instant construction contract that the Plaintiff succeeded to the status as a member of the other party to the instant contract, and as shown in the judgment of the first instance court, seeking confirmation of invalidity of the instant modified contract entered into between the Defendant and the Defendant joining the Defendant is seeking confirmation of the legal relationship between the third party, and it does not affect the Plaintiff’s status as a member of the other party to the instant contract. As such, it cannot be said that the Plaintiff’s legal relationship or legal status with the Defendant, depending on the legal relationship entered into upon the conclusion of the instant modified contract, may not be deemed as causing danger and apprehension. Moreover, it is difficult to confirm the invalidity of the instant modified contract between the Defendant and the Defendant joining the Defendant, which would be an effective and appropriate means to eliminate existing danger and apprehension in the Plaintiff’s legal relationship with the Defendant

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and all the defendant's appeal and the plaintiff's incidental appeal are dismissed. It is so decided as per Disposition.

Judges Jo Hee-de (Presiding Judge)