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(영문) 대구고등법원 2016.09.08 2015나1216
공사대금등
Text

1. Of the judgment of the first instance on the principal lawsuit, the part against the plaintiff (Counterclaim defendant) that orders payment under the following shall be revoked.

Reasons

1. Basic facts

A. The Plaintiff is a person performing mid-term loan and civil engineering work, etc. with the trade name “D” in the Gu and Si, and the Defendant is the owner or co-owner of Sungju-gun E forest, F forest, G, G, H, H, I, and J (hereinafter collectively referred to as the “instant forest”).

B. On February 21, 2013, the Plaintiff was awarded a contract by the Defendant for a civil construction work to construct a factory site in the instant forest, and the main contents of the said contract are as follows.

Article 4 (Period of Construction) Within 10 months from the date of permission (Provided, That the plaintiff and the defendant may adjust the amount of construction in consultation with each other) the total construction amount of KRW 772,00,000 shall be paid in accordance with the following methods:

1) Prepaid money (3.9%) : 30,00,000 won, 2) contract amount (6.1%) : 47,200,000 won at the same time as the contract is concluded, 3) retainers (20%) : 154,40,000 won at the same time as the contract is concluded, and intermediate payments and remainders shall be paid differently in accordance with the progress of the project.

Article 12 (Cancellation)

2. In the case of cancellation, if the part on which the Plaintiff performed the construction is over 30%, the Defendant shall handle the expenses therefor, and if not, shall not pay the expenses.

Article 15 (Matters under Special Agreements)

2. A contract for civil works concluded on November 27, 2012 and an agreement for additional construction works concluded on February 16, 2013 shall be disposed of in the presence of both parties.

3. Road works (pre-J, F forests and fields) shall be not included in civil engineering construction costs;

C. Inasmuch as access roads connected to the instant forest need to be developed for the smooth progress of the said civil works, the Defendant purchased the land necessary for the access roads, and on June 15, 2013, contracted the Plaintiff with the construction cost of KRW 210,000,000 and the construction period of KRW 10 months (within four months from the date of permission for retaining wall construction, and ten months from the date of permission for all sections of the road construction).

From that time, the plaintiff started the construction work of the above civil engineering work and the construction work of the access road.

Of that, the defendant is the forest of this case.

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