The meaning of "when the obligation has become due" under Article 492(1) of the Civil Code

Article 492 (1) of the Civil Code refers to the time when the obligee can claim the performance of the obligation to the obligor, and it does not refer to the time when the obligor falls into delay of performance. Therefore, if the non-party company, the contractor, has to pay the defect repair deposit to the Defendant, who is the contractor, by the time of the completion inspection of the construction and the payment of the construction cost, after the completion inspection of the construction, and the Defendant has completed the completion inspection on August 30, 1976 and had the full obligee pay the remainder of the construction work to the obligor, it shall be deemed that the due date of the payment of the defect repair deposit has arrived as of August 30 of the same year.

Article 492(1) of the Civil Act

Plaintiff

Attorney Lee Jae-won, Counsel for the defendant-appellant

Gwangju High Court Decision 80Na425 delivered on February 18, 1981

The judgment of the court below is reversed, and the case is remanded to Gwangju High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the non-party company, the contractor of the construction contract of this case, agreed to pay 1,296,800 won of the defect repair deposit to the defendant who is the contractor after completion of the construction work. The non-party company under Article 18 of the General Conditions for the Construction Work (Evidence No. 3) which is the contents of the construction contract of this case, requires the defendant to pay the bond for defect repair until the payment of the construction price after completion of the construction work of this case. On the other hand, the non-party company under Article 18 of the General Conditions for the Construction Work of Facilities (Evidence No. 3) did not arrive at the expiration of the warranty bond of this case as of September 7, 1976 after completion of the construction work and completion of the completion inspection and completed the completion inspection, and it was confirmed that the 13,149,300 won of the remainder of the construction contract of this case was paid to the plaintiff who is the full creditor. Therefore, the above non-party company's obligation to pay the remainder of this case did not arrive.

However, it is reasonable to view that, under Article 492 (1) of the Civil Code, the time when the obligation has become due refers to the time when the obligee is entitled to claim the performance to the obligor, and it does not refer to the time when the obligor becomes liable for the delay of performance. In this case, as stated in the judgment of the court below, if the time limit for the non-party company to pay 1,296,800 won of the defect repair to the Defendant is the period from the completion inspection of the construction to the time of the payment of the construction price after the completion inspection of the construction in this case, if the time limit for the non-party company to pay 1,296,80 won is the period from the completion inspection of the construction in this case, the Defendant may request the non-party company to pay the defect repair bond to the non-party company.

Therefore, the judgment of the court below that determined that the assignment order of this case was not yet due at the time when the defect repair payment obligation became effective, deeming that the remainder of the construction project was partially paid as the due date for the defect repair payment obligation, and that the payment period was not yet due, is erroneous in the misapprehension of legal principles as to the arrival of the due date under Article 492(1) of the Civil Act. In light of the records, this is deemed as a serious violation of law, and if the judgment of the court below is not reversed, it is therefore justified

Therefore, the judgment of the court below is reversed, and the case is remanded to the Gwangju High Court which is the original judgment. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-tae (Presiding Justice) Kim Jong-young (Presiding Justice)