(영문) 대법원 2018.2.13.선고 2016다4389 판결

Busan High Court (Chowon) Decision 2014Na2221 (Chowon), (Chowon), (Chowon), 2014Na2238 (Counterclaim), (Chowon), 2014Na2603 (Consolidation) decided December 17, 2015

Imposition of Judgment

February 13, 2018

Text

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan High Court.

Reasons

The grounds of appeal are examined.

1. As to the grounds of appeal on the existence of claims for damages compensation in lieu of defect repair, employment insurance premiums and industrial accident insurance premiums, the lower court determined that: (a) as for the instant construction contract, the Defendant calculated the total insurance premium of KRW 210,494,517 on the ground that, based on the premise that the comprehensive construction premium of KRW 210,494,517 was actually paid, the Defendant did not claim damages compensation in lieu of the insurance premium of KRW 210,494,517 on the construction work of the instant case; and (b) as for the instant construction work of KRW 181,572,856 on the construction work of the instant case; and (c) the construction cost based on the quantity of the non-construction work of KRW 28,921,61 on the aggregate of KRW 210,49,517 on the construction work of the instant case, the Defendant did not claim reimbursement of KRW 97,970 on the basis that the aforementioned insurance premium of KRW 1686.

Examining the record, the lower court did not err by exceeding the bounds of free evaluation of evidence against logical and empirical rules, or by misapprehending the relevant legal doctrine.

2. As to the ground of appeal on the deduction of KRW 215,897,014 paid by the defendant to the Yangyang Industrial Co., Ltd. (hereinafter referred to as the " Yangyang Industrial Co., Ltd.")

A. Review of the reasoning of the lower judgment and the record reveals the following facts and arguments.

(1) Facts

① On August 7, 2008, 2008, e.g., e., e., e., e., e., e., e.g., e., e., e., e., e., e., e., e., e., e., e., e., e., e., e.

The construction of Epyptian was completed on June 11, 2010 and paid KRW 5,838,00,000 for the instant construction project and the remainder of the construction is KRW 762,00,000 for the construction project ( KRW 6,600,000 for the 5,838,000,000 for the 5,000,000 for the construction project). Meanwhile, the Epyptian Construction supplied the Defendant with the amount equivalent to KRW 61,404,00 for the site development project being implemented next to the instant construction site. As such, the Defendant’s Epyptian Construction supplied the Defendant with the amount of KRW 61,40,00 for the total amount of KRW 823,404,00 ( KRW 762,000 for the 0,000 + KRW 61,404,00).

③ On the other hand, AP integrated construction directly executed the road works included in the instant construction under the name of the Sejong Industry Development Co., Ltd. (hereinafter “Sayang Industry Development”), and the two-site industry supplied ebbricide comprehensive construction and ready-mixeds, etc. for the development of the Sejong Industry. On August 13, 2010, the Defendant jointly and severally guaranteed the obligation to purchase goods for the two-site industries in the comprehensive construction and the development of the Sejong Industry.

(4) The two sub-sectors filed a lawsuit against the Defendant seeking payment of the price for the goods supplied for the development of the Changwon District Court’s Jinwon District Court’s Jinwon Branch’s 201AD 170. On April 27, 2011, the said court rendered a judgment ordering the Defendant to pay KRW 215,897,014 and delay damages to the two-party industries. The said judgment became final and conclusive on May 19, 2011. The Defendant paid KRW 294,659,295 to the two-party industries on September 25, 2012. ⑤ On August 29, 2012, the Plaintiff received a collection order from the Changwon District Court’s common branch branch of the Changwon District Court’s common branch of 2012Twon2732,00,000 won among the instant construction price for the instant goods and the instant goods supplied for the Defendant, and received an order of seizure and collection from the Defendant.

④ On October 10, 2012, the Plaintiff transferred the provisional seizure order of claim No. 2010Kadan240 (hereinafter referred to as “provisional seizure order of claim of this case”) to the original attachment as to KRW 16,934,764, out of the instant construction costs and the claims for goods against the Defendant of the Madern Construction, the Changwon District Court rendered an order of seizure and collection (hereinafter referred to as “provisional seizure order of claim of this case”) with the content of seizure of claim No. 2,237,414 as to KRW 2,237,414, and the above order was served to the Defendant on December 10, 2012. Meanwhile, the provisional seizure order of this case was served to the Defendant on February 8, 2011.

(2) The parties' assertion

① On April 27, 2011, the Defendant was sentenced to a judgment on the payment of KRW 215,897,014 and damages for delay to both industries. Around that time, the Defendant became final and conclusive, and the Defendant was entitled to the prior right of reimbursement of the deposit guarantor under Article 442 of the Civil Act as to the construction of Category B B, and the Defendant paid KRW 294,659,295 to both industries on September 25, 2012 in accordance with the aforementioned judgment. As such, the Defendant asserted that the aforementioned prior right of reimbursement was offset against the balance of the instant construction works and the amount equivalent to the goods payment claim against the Defendant for the comprehensive construction.

On September 25, 2012, the Plaintiff: (a) paid KRW 294,659,295 to both industries on September 25, 2012; and (b) was entitled to the ex post facto claim for reimbursement of the AP General Construction; (c) however, the said ex post facto claim for reimbursement was made after the date the provisional attachment order of the instant claim and the first attachment and collection order were served to the Defendant and became effective; (d) accordingly, the Plaintiff asserted that the Plaintiff, the obligee for the collection of the attachment, could not oppose

B. The court below determined that the above deduction is valid on the ground that the remaining joint plaintiffs of the court below, except the plaintiff, are the joint plaintiffs of the court below, or there is no dispute between the above plaintiffs and the defendant as to the amount to be deducted from the aggregate of KRW 823,404,00 of the construction balance and the goods price of this case and KRW 215,897,014 paid by the defendant to the Yangchi Industry. The above deduction is not effective since the part to be deducted does not affect the seizure and collection order [823,404,731 won ( KRW 823,404,00 - 226,399,269)]. However, the court below's decision is difficult to accept for the following reasons.

The lower court determined that it is valid to deduct KRW 215,897,014 that the Defendant paid to the two-way industry from the total sum of the construction balance and the goods price of the instant case. However, the Plaintiff and the Defendant do not expressly state the grounds for such deduction. However, it is difficult to see that the Plaintiff and the Defendant should also be naturally deducted solely on the grounds that the Plaintiff and the Defendant do not dispute the remainder of the lower court’s mutual aid with the Plaintiff except the Plaintiff.

Generally, a deduction that means the mutual increase or decrease of claims and obligations arising out of a single contractual relationship is naturally appropriated without a separate declaration of intent, and is different from a set-off under the Civil Act (see Supreme Court Decision 2015Da6990, Jan. 24, 2018).

However, the claim for the remainder of the construction in this case and the purchase price of goods against the defendant of the Construction in the Construction in the Construction in the Construction in the Construction in the Construction in the Construction in the Construction in the Construction in the Construction in the Construction in the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in the Case of the Construction in

It is difficult to find any particular legal or contractual basis that can be seen as being in the world. As seen earlier, the Plaintiff and the Defendant are merely asserting and opposing the set-off inasmuch as the Defendant’s right to indemnity against the comprehensive construction is regarded as a claim and an obligation relationship arising out of a separate contractual relationship, and the right to indemnity against the Defendant in relation to the comprehensive construction is regarded as a claim and obligation relationship arising from a separate contractual relationship.

Therefore, even if the claim for offset can be seen as a claim for deduction, the court below should have deliberated specifically on whether the claim for reimbursement is naturally deducted from the construction balance and the goods cost of this case, and should have judged as to the defendant's claim for offset against the defendant's claim for reimbursement against comprehensive construction if the claim for reimbursement is not naturally deducted.

Nevertheless, the lower court, solely based on its stated reasoning, deducted KRW 215,897,014 from the total sum of the construction balance and the goods price of this case from KRW 823,404,00. In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on offsetting with the deduction, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the plaintiff among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.