2018Da23044 ( principal office) Construction Costs

2018Da23051 (Counterclaim) damages

Appellant

A

Saryary Appellee

B

Busan District Court Decision 2017Na53774 (Main Office), April 19, 2018 2017Na

53781 (Counterclaim) Judgment

October 12, 2018

1. The judgment of the court of first instance is reversed and the judgment is modified as follows.

A. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 39,00,000 won with interest of 6% per annum from October 25, 2014 to April 19, 2018, and 15% per annum from the next day to the date of full payment.

B. All of the Plaintiff (Counterclaim Defendant)’s remaining principal claim and Defendant (Counterclaim Plaintiff)’s counterclaim are dismissed.

2. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”)

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable in rejecting the Plaintiff’s claim on this part on the ground that there is insufficient evidence to acknowledge that the Plaintiff received the additional construction cost at the request of the Defendant (Counterclaim Plaintiff, hereinafter referred to as “Defendant”) and performed electrical construction, shipbuilding, and minor construction. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the rules of evidence, misapprehending the legal doctrine,

2. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

(1) The first instance court ordered the Plaintiff to pay 53,898,800 won per annum from October 25, 2014 to August 10, 2017, and damages for delay calculated at the rate of 15% per annum from the next day to the day of full payment. The lower court partially accepted the Defendant’s appeal, and determined that the Defendant was liable to pay 39,000,000 won per annum from the next day to the Plaintiff, but the Defendant is obligated to pay 14,898,800 won per annum from the next day to the day of full payment, and damages for delay calculated at the rate of 15% per annum from the next day to September 25, 2015. The lower court determined that the Plaintiff was liable to pay 39,00,000 won per annum from the next day to the day of full payment.

(2) However, it is difficult to accept the above determination by the court below for the following reasons.

Since an original claim and damages for delay arising in the event of nonperformance of a pecuniary obligation are separate objects of lawsuit, whether it constitutes an unfavorable alteration ought to be determined separately by comparing the principal and damages for delay respectively, and the determination of whether it constitutes an unfavorable alteration ought to be based on the total amount of separate objects of lawsuit (see, e.g., Supreme Court Decisions 2004Da40160, Apr. 29, 2005; 2009Da12399, Jun. 11, 2009).

In addition, Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases Act”) provides that “Where it is deemed reasonable for an obligor to dispute over the existence or scope of the obligation to pay damages before a fact-finding court declares that the obligor has the obligation to pay damages to the obligor, paragraph (1) shall not apply to the reasonable extent.” Article 3(1) of the Act provides that “Where it is deemed reasonable to dispute over the existence or scope of the obligation to pay damages due to nonperformance of the obligation, the application of Article 3(2) of the Act on Special Cases Concerning the Settlement of Legal Proceedings (hereinafter “Special Cases Concerning the Settlement of Legal Proceedings”) may be excluded.” Article 3(2) of the same Act provides that “The court below’s determination that the obligor is not obliged to pay damages to the obligor at least 10% of the total amount of the obligation to pay damages to the obligor shall be deemed as a matter of fact-finding and assessment by the court regarding the relevant case (see, e.g., Supreme Court en banc Decision 2000Da19729.

Nevertheless, the lower court determined that, by applying the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, the Defendant is liable to pay damages for delay calculated at the rate of 20% per annum from October 25, 2014 to September 30, 2015, and 15% per annum from the next day to the day of full payment (amended by Presidential Decree No. 26553, Sept. 25, 2015; the statutory interest rate of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which was enforced on October 1, 2015, was amended from the previous 20% to 15% per annum). In so doing, the lower court erred by misapprehending the legal doctrine on the principle of prohibition of disadvantageous alteration and the scope of application of the Act on Special Cases, etc., thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

B. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the relevant legal principles and records, although there are some inappropriate parts among the judgment of the court below, it is just that the court below determined that there was a direct payment agreement between the plaintiff, C and the defendant on the price of interior works of this case, and contrary to what is alleged in the grounds of appeal, the court below did not err by violating the rules of evidence, etc.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable in rejecting the Defendant’s counterclaim on the grounds that there is insufficient evidence to prove that the Plaintiff did not perform a re-re-re-issuance of the toilet screen. In so doing, contrary to what is alleged in the grounds of appeal,

3. Conclusion

Therefore, the judgment of the court below is reversed, and this case is sufficient for the court to directly judge, and therefore, it is decided to render a self-determination in accordance with Article 437

The defendant is obligated to pay to the plaintiff 39,00,000 won and damages for delay calculated at the rate of 6% per annum prescribed by the Commercial Act and 15% per annum prescribed by the Act on Special Cases concerning the Settlement of Claims from April 19, 2018, which is the date following the delivery date of a copy of the complaint in this case which the plaintiff seeks, until October 25, 2014, which is the date following the delivery date of the copy of the complaint in this case that the defendant seeks to pay to the plaintiff for the existence of the obligation or the scope of the obligation. Thus, the plaintiff's claim in this lawsuit is justified within the above scope of recognition, and the remainder of the plaintiff's claim in this lawsuit and the counterclaim are dismissed all of the grounds for appeal. The judgment of the first instance is modified as above, and the total costs of the lawsuit are to be borne by the plaintiff and the remainder by the defendant respectively. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-sik, Counsel for the defendant

Justices Cho Jong-hee

Justices Min Min-young

The chief Justice Justice shall mobilized