A. Whether the contractor's right to repair the defects or the right to claim damages is concurrently performed with the contractor's right to claim remuneration (affirmative);

B. Whether a contractor may refuse the payment of remuneration without claiming a defect repair or damages on the ground that there is a defect in the object delivered upon completion of the contract (negative)

(c) Requirements for requesting the repair of defects and the scope of remuneration which may be refused on the ground of claims for damages in lieu of the repair of defects.

(d) The case reversing the judgment of the court below which rejected a contractor's request for the repair of defects, on the ground that it erred by misapprehending the legal principles concerning the contractor's right to request the repair of defects and neglecting the exercise

A. When there is a defect in the completed object in a contract for work, the contractor may claim against the contractor for the repair of the defect, and the contractor may claim damages in lieu of or together with the repair of the defect, unless there are special circumstances, these claims are related to the contractor's right to demand the remuneration.

B. A contractor may not refuse the payment of the repair without claiming the compensation for damages in lieu of the repair of defects or the repair of defects on the ground that there are defects in the object delivered to him.

C. Where a contractor intends to claim for the repair of a defect, he/she must bear excessive expenses, even if the defect is important or important, and where a contractor claims compensation in lieu of the repair of a defect, he/she may refuse the performance of his/her obligation only for the amount of remuneration equivalent to the amount of the compensation until the contractor provides the performance of his/her obligation with respect to the claim for damages, and may not refuse the payment of the remainder.

D. The case reversing the decision of the court below which dismissed the contractor's claim for the repair of defects on the ground that there was a defect in the completed object, on the ground that there was an error of law by misapprehending the legal principles as to the right to claim the repair of defects and neglecting the exercise of the right to request the repair of defects, and failing to make a proper examination properly, in order to refuse the payment of the repair on the ground that there was a defect in the completed object.

(b)Article 536, Article 665, and Article 667 (d) of the Civil Procedure Act;

A. Supreme Court Decision 88Meu18788 delivered on December 12, 1989 (Gong1990, 249). (B) Supreme Court Decision 64Da1802 delivered on April 6, 1965, Supreme Court Decision 90Meu230 delivered on May 22, 1990 (190, 1353)

[Judgment of the court below]

Defendant

Daegu District Court Decision 90Na3919 delivered on August 14, 1991

The judgment of the court below is reversed.

The case shall be remanded to the Daegu District Court Panel Division.

The grounds of appeal Nos. 1, 3, and 4 of the Plaintiff’s Attorney are also examined.

1. If the reasoning of the judgment of the court of first instance cited by the court below combines the reasons stated in the judgment below, the court below acknowledged that the plaintiff concluded a contract between the defendant and the construction cost of the building of this case on the site owned by the defendant and delivered it to the defendant on October 7, 198, and that the defendant still did not pay a certain amount of 5,590,00 won out of the above construction cost. The plaintiff's assertion that the above construction cost of the building of this case was merely defective enough to the extent of 10,536,90 won for the above construction cost, and that it was difficult to determine that the plaintiff's defense that the above construction cost of the building of this case could not be paid until the plaintiff's repair work was completed, because it was merely an important reason for the plaintiff's rejection of the above construction cost of the building of this case, on the premise that the plaintiff's rejection of the above construction cost of the construction work of this case was still an important reason for the plaintiff's rejection of the above construction cost of the building of this case.

2. Where there is a defect in the completed object in a contract for work, the contractor may claim against the contractor for the repair of the defect (Article 667(1) of the Civil Code), and the contractor may claim damages in lieu of, or together with, the repair of the defect (Article 667(2) of the Civil Code) (Article 67(2) of the same Act). Except as otherwise provided by the court below, that these claims are simultaneously performed with the contractor’s right to claim the remuneration (Article 66(3) of the same Act; Supreme Court Decision 85Meu2263 Decided September 22, 1987; Supreme Court Decision 8Da18788 Decided December 12, 198).

However, on the ground that there is a defect in the object delivered by the contractor, the contractor cannot refuse the payment of the repair without claiming compensation for the defect or for the repair of the defect (see Supreme Court Decision 64Da1802 delivered on April 6, 1965). In order for the contractor to claim the repair of the defect, it should be the case where the defect is important, or where the contractor does not require excessive expenses (proviso of paragraph (1) of the same Article). If the contractor claims compensation in lieu of the defect, the contractor may refuse the performance of his/her obligation only for the amount of compensation corresponding to the amount of the compensation until he/she provides the performance of his/her obligation in relation to the claim for damages, and it cannot be refused to pay the remainder (see Supreme Court Decision 90Meu230 delivered on May 22, 190). The contractor should first refuse the payment of the repair on the ground that there is a defect in the object completed by the contractor on the ground that it is a defect.

3. However, in the case of this case, the court below judged that the defendant claimed for the repair of defects in the building of this case to the plaintiff, but it is also recognized by the court below that the defendant opposed to the plaintiff's repair of defects (in light of the records and review of the evidence employed by the court below, it is not possible to find any material to acknowledge that the defendant's rejection of the plaintiff's repair of defects is the same as the judgment of the court below, but it is evident that the defendant refuses the plaintiff's repair of defects, regardless of its reason, it is obvious that the defendant still claims for the repair of defects in the building of this case against the plaintiff, not that, whether the defendant refuses the plaintiff's repair of defects and claims compensation for damages in lieu of the plaintiff's repair of defects,

If the court below first ordered the defendant to present this point, and then, if the defendant still claims for the repair of the defect, it should be examined about the kind and degree of the defect to be repaired, as well as the proper method to repair the defect and the cost to repair it (whether or not the defect in the building in this case is important or not, even if the defect in this case is not important or important, it should be considered whether or not the excessive cost is not required to repair it), and should have judged whether or not the defect in the building in this case can be rejected in light of the principle of good faith. If the defendant claims damages in lieu of the defect, not the compensation for the defect in this case, it should have determined the amount of damages to be compensated by the plaintiff, and should have clarified the scope within which the right of defense of simultaneous performance is recognized, compared with the amount of the plaintiff's right of defense of simultaneous performance.

Nevertheless, the court below rejected the Plaintiff’s claim for the payment of the contract amount of this case solely on the grounds that it is presumed that considerable expenses are incurred in repairing the defects of the building in this case without taking such measures as above. Thus, the court below did not err by misapprehending the legal principles on the right to claim the repair of defects in the contract and neglecting the exercise of the remaining right to request the repair of defects in the contract, and it is evident that such illegality has affected the conclusion of the judgment. Thus, the arguments pointing this out are with merit.

4. Therefore, without further proceeding to decide on the second ground of appeal by the plaintiff, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)