2020Da290590 Damages, etc.

Korea

Law Firm LLC et al., Counsel for the defendant-appellant

Attorney Kim Jong-soo et al.

Maco Construction Co., Ltd. and five others

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Choi Byung-ho et al., Counsel for the defendant

Hyundai Engineering Co., Ltd.

Law Firm LLC et al., Counsel for defendant-appellant

[Defendant-Appellee] Defendant 1 and 2 others

Seoul High Court Decision 2018Na2012801 Decided November 11, 2020

July 8, 2021

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. The lower court acknowledged that the instant construction contract was based on the so-called package deal design and construction project (Turn-Ky Bse), but it was difficult to perform river management based on the characteristics of river management, i.e., it was difficult to predict by experiment, etc. based on the past flood experience. In the event that the State entrusts the contractor with river facility construction for river management, it can be proven that the contractor failed to meet the river management standards set out by the contractor based on flood experience, and in the event there was damage to the object due to flood, etc. that exceeded the river management standards even though the river management standards were designed and constructed, the lower court presumed that the defect was found only if there was proof as to the specific part of the design and construction work performed by the Defendants, and that there was insufficient proof as to whether the river maintenance project performed in accordance with the design and construction standards set by the Plaintiff, which was designed and constructed by the Defendants, and that there was a lack of illegality in the Defendants’ warranty liability due to non-performance or non-performance.

B. However, we cannot accept the judgment of the court below for the following reasons.

1) The so-called contract for design and construction work under the so-called package deal design and construction method refers to a contract under which a contractor, after understanding the purpose of the establishment of the object of construction which the contractor wishess, prepares design documents meeting the purpose of the establishment, executes the construction work on his own, and guarantees the performance of the construction work, thereby achieving the desired purpose of the contractor (see, e.g., Supreme Court Decisions 2013Da2091, Jan. 16, 2014; 2013Da2100 (Counterclaim); 92Da41559, Aug. 12, 1994).

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) The Defendants constituted a joint supply and demand organization with the representative company of the Defendant Spanco Construction (hereinafter referred to as the “Defendant Spanco Construction”) and participated in the bidding on the 30 sections of the Nakdong River Project (Guun District), and decided as the person qualified for design and construction. On October 2009, the Defendants entered into the instant construction contract under the so-called “Turn-Key Base” method with the Plaintiff.

B) According to the package deal guide, construction contract special conditions, etc., which are the contents of the instant construction contract, the Defendants are obligated to design and execute the construction works with more performance, materials, and construction methods as minimum requirements, and the Plaintiff or the relevant expert, after the conclusion of the contract, shall reflect them in the design and construction work. Meanwhile, even if the design plan was determined as appropriate at the time of tender, the Defendants are not exempted from the liability for the design plan, and even if the design defect was discovered at the time of the design deliberation or the conclusion of the contract, the Defendants are required to supplement the design defect at the expense of the Defendants. The Defendants provide that the Defendants shall provide sufficient performance guarantee and verification through the test of trial operation and performance guarantee for all facilities prior to the completion of the contract.

C) The instant construction project includes a construction project for designing and constructing a riverbed maintenance hole (hereinafter referred to as “water maintenance hole in the instant case”) on the ground of the mouth of the Nakdongdong River. On November 2010, the Plaintiff held an advisory committee in order to examine the appropriateness of the design and construction of the water maintenance hole in the instant case. The advisory committee pointed out the location of the installation and the examination of the small flow of the facilities (e.g., the power to drive down the water surface) with respect to the shop design established by the Defendants. On December 2010, the Defendants planned to take measures against the above land on the basis of a close examination of the shop design, and planned to take measures against the above land around December 2010, the Defendants were to be the most appropriate location for protecting the riverbed of the water stream, and “100 square meters in the water surface”, and “5.6 meters in the water surface of the instant river surface and the water surface analysis of the water surface of the instant river surface,” and there were no problems in the water surface of the water surface in the instant construction project.

D) On February 2, 2011, the advisory committee reported the above action plan pointed out that the Defendants were able to conduct re-evaluation of the distribution of force, the detailed design in preparation for the upper or lower upstream of the upper or lower upstream of the river maintenance hole, the review of the stability of comparison of the estimated speed and the upper and lower limit oil, and the comparison and review of the permissible small power in accordance with the composition of the lower parts of the river basin and the small power in the lower parts of the lower parts of the river basin, and the design of the former is more or more than the latter. There was no evidence or material to deem that the Defendants took any action against this.

E) On June 2012, the Defendants completed the completion of the instant construction, including the construction of the instant riverbed maintenance hole. On September 17, 2012, a typhoon was landed on the south coast and a regional heavy rain occurred while passing through the area where the instant riverside maintenance hole was installed. At that time, 184m out of the total riverside maintenance hole 264m of the instant riverside maintenance hole was neglected.

F) The Defendant Posco Construction expressed the opinions on the following grounds: (a) due to the heavy rain related to typhoons with respect to the causes of damage to the lower-water maintenance hole of this case immediately after the passage of typhoons, the small flow capacity of the location of the instant lower-water maintenance hole of this case increases from a minimum of at least 77.84 kilogram/m2 to a maximum of at least 109.37 kilogram/m2, which is the permissible flow capacity of the wood embankments, and (b) the flow exceeds the permissible flow of the timber embankments, and (c) the flow exceeded the permissible level of damage.”

G) As a result of the safety review conducted around December 2013 in the course of the Sea Sea Disaster Restoration, it was confirmed that the installation at the upper upstream point of approximately 8.0 meters measured by the speeds, etc. of approximately 8.0ms at the point where the riverside maintenance hole in this case was installed, and that there was no problem in the structural stability from the existing installation site. Accordingly, new riverside maintenance hole was installed at the above 500-meter upstream point, and concrete construction method was used.

H) According to the Guidelines for River Construction Design Practice issued by the Plaintiff’s Ministry of Construction and Transportation under the jurisdiction of the Plaintiff, in the case of the heading that consisted of a fluorg title, the scope of fluorial force is not more than “150 kilogram/m2,” and in the attached Table, the permissible fluorial capacity of a timber embankment is “50 kilogram/m2,” and in the attached Table, the Defendants argued that the permissible fluorial capacity of a timber embankment was 150 kilograms/m2, and in fact, the Defendants argued that the instant river basin was designed and constructed by applying the 50 kilogram/m2 of the permissible fluorial capacity.

I) On the other hand, the Nonparty presented the appraisal opinion that the reason for the loss of the riverbed maintenance hole of this case is not because of the size of the force of the river basin, but because the location of the building was left in the mouth of the river mouth, and because the depth of the installation was not installed, it is not sufficient to secure the solidness.

3) Examining the aforementioned facts and the following circumstances revealed therefrom in light of the legal principles as seen earlier, it is reasonable to deem that the Defendants, in accordance with the instant construction contract under the design and package deal method (Turn-Ky Ba), had the duty to ensure the Plaintiff’s desire safety, etc. in the design and construction of the instant riverbed maintenance hole, but failed to ensure such stability, thereby making the instant riverbed maintenance hole incomplete performance of obligations arising from the instant construction contract. Therefore, there is considerable room to deem that the Defendants are liable for nonperformance due to the defect liability or incomplete performance.

A) The instant contract is based on so-called design and package deal (Turn-Ky Ba), and the Defendants, as the Defendants, have a duty to guarantee the safety of the object of construction intended to the Plaintiff. Although the Plaintiff’s advisory committee pointed out the necessity of additional measures on the stability of the design and construction of the instant riverbed maintenance hole over two occasions, it seems that there was no problem of stability or practical measures other than the answer that “There was no problem of stability.”

B) Even based on the Defendants’ assertion or explanation, the Defendants, who was demanded by the Advisory Committee to examine the force at the time of the implementation design of the instant lower-class shop, was not the permissible hydrogen of 150 kilograms/㎡, and was designing and constructing the lower-class shop with the permissible hydrogen of 50 kilograms/㎡, which is far less than that of said 50 kilograms. If the lower-class shop had the permissible hydrogen of 150 kilograms/㎡, the Defendants can be presumed to have failed to keep the lower-class shop of this case even if the lower-class shop of this case had a maximum of 109.37 kilograms/С due to typhoon and heavy rain.

C) Since three months have not passed since the completion of the instant lower-water maintenance hole, the lower-water maintenance hole newly designed and constructed was installed at an upper-water reservoir than 500 meters away from its original location as a combined method of concrete construction after re-examination of the installation location and repair stability.

4) Nevertheless, the lower court determined otherwise, on the premise that the obligation to be borne by the contractor, the existence of the defects in the contract subject matter, and the burden of proof varies, even if the contract is related to the river management by the so-called design and package deal design and construction method, and that there is no defect in the design and construction of the river maintenance hole in this case. In so doing, the lower court erred by misapprehending the legal doctrine on the contractor’s duty in the contract under the so-called design and package deal design and construction method, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. Regarding ground of appeal No. 2

A. The court below rejected the credibility of the appraiser's appraisal result of the non-party to the court below that "the point of installation of the riverbed maintenance hole in this case was inappropriate, and its solidness, such as the depth, was not adequate." The non-party to the court below failed to present specific grounds that it is not sufficiently solid, and there is a conflict between the opinions of other experts submitted by the defendants, and the company to which the appraiser belongs appears to have been requested by the plaintiff for examination of the river basin from the plaintiff in the past.

B. The appraiser’s appraisal result should be respected unless the appraisal method, etc. is against the empirical rule or unreasonable (see, e.g., Supreme Court Decision 2006Da67602, Jul. 9, 2009; Supreme Court Decision 2006Da67619 (Counterclaim)).

However, according to the records, the non-party, at the time of flood, has presented the grounds that the river basin of this case was installed above the sand ground of the river basin of this case, and the sand ground of the flow of flowing water near 0 and that the river basin of this case would be easy to be pushed down in the direction of flow, and that the movement of inner vegetable materials would be aggravated due to the movement of internal vegetable vegetable vegetable materials, etc. In addition, it is difficult to view that the non-party’s assertion of credibility can be grounds for rejecting the credibility of the appraisal result under Article 33 of the Civil Procedure Act, and that the circumstance differs from the opinions of the experts submitted by the parties, is difficult to view that the non-party’s appraisal method and the non-party’s appraisal result are reasonable or unreasonable in light of the aforementioned circumstances, such as the non-party’s appraisal method and the non-party’s appraisal result, it is difficult to view that the court below, upon the Plaintiff’s request of the appraiser and the Korea Water Resources Association upon recommendation of multiple association.

C. Therefore, it is difficult to accept the lower court’s rejection of the appraiser’s appraisal result on the grounds stated in its reasoning, and such lower judgment erred by misapprehending the legal doctrine on the probative value of appraiser’s appraisal result, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Tae-tae, Counsel for the defendant

Justices Cho Jae-chul

Justices Min You-sook

Justices Lee Dong-won