(영문) 서울고등법원 2020.1.8. 선고 2016나2047322 판결

1. The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiffs' claim corresponding to the revoked part is dismissed.

2. The plaintiffs' appeal and the first and second preliminary claims added by this court are all dismissed.

3. (a) Upon the application for the return of provisional payments, A Co., Ltd., a party to the lawsuit of the Plaintiff A, shall pay to the Defendant the amount of KRW 9,060,421,594 as well as 5% per annum from August 5, 2017 to January 8, 2020, and 12% per annum from the following day to the date of full payment.

B. The defendant's motion to return the remainder of the provisional payment against A corporation, which is the plaintiff A corporation's taking over the lawsuit, and the motion to return the provisional payment against B is dismissed, respectively.

4. The plaintiffs bear the total cost of the lawsuit except the cost of filing an application for provisional payment, and the cost incurred between A and the defendant, a lawsuit taking over the plaintiff A, out of the cost of filing an application for provisional payment, shall be borne by the above plaintiff, and the cost incurred between B and the defendant shall be borne by the defendant.

5. The third paragraph (a) may be provisionally executed.

The purport of the appeal and the purport of the application for the return of provisional payments

1. Purport of claim

The defendant shall pay to the plaintiffs 9,570,344,00 won with 20% interest per annum from the day following the service date of a copy of the complaint of this case to the day of complete payment.

[Plaintiffs claimed indirect construction costs due to the extension of the total construction period on the premise that the binding force of the overall contract is recognized in the long-term continuing construction contract in the first instance court, but this court maintained the primary cause of claim and added indirect construction costs for the blank period between the five and the sixth multiple contracts and the extended construction period between the five and the sixth multiple contracts as the primary cause of claim, and added indirect construction costs for the extended construction period to the second preliminary cause of claim).

2. Purport of appeal

A. The plaintiffs

Of the judgment of the court of first instance, the part against the plaintiffs falling under the order to pay below shall be revoked.

The defendant shall pay to the plaintiffs 1,831,775,853 won with 15% interest per annum from the day following the service date of a copy of the complaint of this case to the day of complete payment.

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

3. Purport of request for the return of provisional payments

The defendant is entitled to pay 9,060,421,594 won, 1,006,713,511 won, and 6% per annum from August 5, 2017 to the date of this decision, and 15% per annum from the following day to the date of full payment.

Reasons

1. Basic facts

The reasons for this part are as follows, and this part of this Court's reasoning is as stated in Paragraph 1 (including attached Form 1 through 3) of the judgment of the court of first instance, so it shall be quoted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○ The third 9-15 of the judgment of the first instance court is as follows.

1) The instant construction contract was concluded through a comprehensive contract (hereinafter referred to as “instant overall contract”) and each annual contract within the scope of the budget of the pertinent year with an additional statement of the construction cost determined by a successful bid, etc., and was amended several times on December 10, 209. On September 25, 2013, the instant construction contract was revised into a long-term continuing construction contract with a content of changing the instant construction contract into a continuing expenditure contract. The final change was made on December 31, 2013 on September 25, 2013 as the contract price of KRW 199,87,000,000,000 for a long-term continuing construction contract, and on December 31, 2013. The detailed change was the same as the statement on the details of the instant construction contract in the attached Form 2 (hereinafter referred to as “each annual contract,” and the individual contract was amended to “the specific continuing expenditure contract after the amendment”.

○ 4. The 5th parallel "2.12, 9." shall be "12, 29.12".

2. Judgment as to the main claim

A. The plaintiffs' assertion

Due to the extension of the total construction period of the instant construction project due to a cause not attributable to the Plaintiffs, the Plaintiffs additionally paid indirect construction costs. According to the instant general conditions applicable to the instant construction contract, when it is necessary to adjust the contract amount due to extension of construction period, the Defendant shall adjust the contract amount to the extent that does not exceed the actual cost according to the Plaintiffs’ application for

Therefore, the Defendant is obliged to pay the indirect construction cost that was additionally paid during the period from April 28, 2008 to December 31, 2012, which was sought by the Plaintiffs during the extended period as a result of the extension of the total construction period under the instant construction contract.

[Plaintiffs asserted to the effect that, inasmuch as a long-term continuing construction contract is an independent contract that exists concurrently with an annual contract, and that the Plaintiffs and the Defendant agreed to grant a conclusive binding force during the total construction period under the overall contract (a separate comprehensive contract modification contract that changes only the total construction cost under the overall contract without an annual modification) and whether the construction period has been extended, the overall contract should be based on the total construction period stipulated under the overall contract.]

B. Determination

Under the premise that the total construction period under the overall contract for long-term continuing construction is binding even when the total construction period under the overall contract is extended, the Plaintiffs claim to the effect that all additional indirect construction costs should be subject to the adjustment of the contract amount. On the other hand, on the premise that the total construction period under the overall contract does not have a definite binding force, the Defendant argues to the effect that the adjustment of the contract amount is not recognized even if the total construction period under the overall contract is extended under the overall contract. Accordingly,

Article 21 of the former Act on Contracts to Which the State is a Party (amended by Act No. 11377, Mar. 21, 2012; hereinafter referred to as the "State Contracts Act regardless of before and after the amendment") provides that "the head of each central government agency or the public official in charge of contracts may enter into a long-term continuing construction contract, as prescribed by Presidential Decree, if it is necessary to continue to maintain the contract for several consecutive years or if it takes several years to implement the contract due to its nature, such as lease, transportation, storage, electricity, gas, and supply. In such cases, a long-term continuing construction contract shall be implemented within the scope of the budget of each fiscal year." In addition, Article 69(2) of the Enforcement Decree of the State Contracts Act provides that "long-term continuing construction contract shall be executed with additional statement of the total construction cost determined by the successful bid, etc. and shall be executed within the scope of the budget of the fiscal year." In such cases, a contract after the second construction shall be entered into as an additional statement within the total construction cost (referring to the adjusted total construction cost)."

As such, a long-term continuing construction contract is not in the form of a separate contract with regard to the total construction cost and the total construction period, but rather in the form of a separate contract with regard to the first construction contract for each individual business year. The total construction cost and the total construction period stated at the time of concluding the first construction contract refers to an agreement with regard to the total construction cost and the total construction period. The total construction cost and the total construction period specified in the said comprehensive contract are based on the scale of the project planned by the State, etc. at the time of bidding. If the total construction period is extended upon the lapse of the business year, the total construction period and the total construction period are changed as the total construction period stated in the annual contract, and it does not change the contents of the general contract (total construction amount and the total construction period) separately

Therefore, the foregoing overall contract is not itself based on a conclusive agreement on the total construction cost or the total construction period, but rather linked to the conclusion of each annual contract. Generally, the parties to a long-term continuing construction contract appear to have the intent to use the total construction cost and the total construction period of each annual contract as a provisional standard in concluding each annual contract. The total construction cost and the total construction period additionally stated in each annual contract are difficult to be deemed to have an intention to generate or have binding rights and duties on the construction cost and the construction period.

In other words, the so-called general contract in a long-term continuing construction contract shall be deemed to be an agreement on the fact that the contracting party is in the position to conclude each annual contract, and the total scale of the contract shall be based on the overall contract, as the criteria for the temporary utilization of the overall scale of business, construction amount, construction period, etc. Therefore, the validity of the general contract shall be limited to the determination of the contracting party, determination of the intent to perform the contract, contract price, contract unit price, etc., and the specific details of the performance to be performed by the contracting party, the scope of the contract price to be paid to the contracting party, execution period of the contract, etc., shall be deemed to have been specifically determined through the annual contract (see, e.g.

As seen above, the construction contract of this case was initially concluded as a long-term continuing construction contract and changed into a continuing expenditure contract. In light of the above legal principle, it cannot be deemed as a conclusive binding force for the total construction period under the overall contract at the time of the date of the long-term continuing construction contract, and it is difficult to deem that the Plaintiffs intended to generate conclusive rights and duties based on the total construction period under the overall contract or to have binding force solely on the sole basis that the Plaintiffs were making changes to the construction period under the overall contract without directly linked with the annual contract.

Therefore, with respect to the instant construction contract, the application for adjustment of the contract amount due to extension of the construction period under the overall contract is not allowed because the total construction period under the overall contract is not binding.

Therefore, the primary claim of the plaintiffs is without merit, and there is no reason to consider the different points.

3. Judgment on the first preliminary claim

A. Summary of the plaintiffs' assertion

Since the total construction period originally agreed upon under the general contract of the instant construction contract was April 27, 2008, indirect construction costs for the period during which construction was actually performed after April 27, 2008 shall be subject to the adjustment of the contract amount under the general conditions of this case.

Therefore, according to the plaintiffs' application for the contract amount adjustment concerning the fifth and sixth contracts on December 23, 208, and December 27, 2013, the defendant is obligated to pay the indirect construction cost for the construction period from April 28, 2008 to December 31, 2012, as requested by the plaintiffs during the construction period not included in the above contract and the construction period included in the above contract.

B. Determination

1) First of all, the Plaintiffs claim indirect construction costs incurred thereafter based on the expiration date of the initial total construction period stipulated in the overall contract of the instant construction contract. This purport is that, in the case of an annual contract concluded after the expiration of the total construction period, adjustment of the contract amount should be made for all the periods, which can be deemed to have been extended in addition to the construction period stipulated in the relevant annual contract, and therefore, it does not coincide with the premise of binding force of the overall contract.

However, as seen earlier, the legal binding force cannot be recognized during the total construction period stipulated in the overall contract for a long-term continuing construction contract. Thus, the plaintiffs' assertion on a different premise is without merit without examining any difference.

2) Next, we examine the above argument by the plaintiffs since it can be seen that the contract amount adjustment due to extension of the construction period should be made with respect to the 5th and 6th contracts.

The facts that the plaintiffs and the defendant extended the completion date of the construction of the construction of this case from April 27, 2008 to December 24, 2008 under the first amendment contract of the fifth multiple contracts on April 24, 2008 on the grounds of the delay in land purchase and approval of the project implementation plan may be acknowledged by either dispute between the parties or by taking into account the entries in subparagraph 1-3, the results of appraiser H’s appraisal, and the whole purport of pleadings. Meanwhile, the fact that the plaintiffs completed the application for the adjustment of contract amount due to the extension of the construction period as above on December 23, 2008 prior to the receipt of the completion price of the fifth multiple contracts is recognized as above.

Thus, the above reasons for extension of the construction period are not attributable to the plaintiffs. Thus, the defendant is obliged to pay the plaintiffs the indirect construction cost due to the extension of the construction period with respect to the fifth water contract unless there are other circumstances.

On the other hand, however, the claim for indirect construction cost is a claim for a contractor’s construction work, and the three-year short-term extinctive prescription is applied pursuant to Article 163 subparag. 3 of the Civil Act. The plaintiffs asserted that the lawsuit in this case from December 25, 2008, which was the day after the expiration date of the fifth multiple contracts, should be the day after the expiration date stipulated in the overall contract.

However, as seen earlier, with respect to the overall contract, the relationship between the general contract and the annual contract, the validity of the general contract is limited to the determination of the contracting party, the determination of the intention to perform the contract, the contract price, the scope of the construction price to be paid to the contracting party, the execution period of the contract, etc., and the validity of the general contract, etc., and it is apparent that the validity of the general contract is limited to only the determination of the contracting party, the determination of the intent to perform the contract, the unit price of the contract, etc., and it shall be deemed that all of the annual contracts have been specifically determined through the annual contract. As such, it is apparent that the extinctive prescription period of the claim for the construction price under each annual contract is run from the time when the right to claim for the construction price

Meanwhile, according to the above recognition, the sixth water supply contract was concluded on December 10, 2009 at the time of the conclusion of the contract on December 30, 2008, and there was no change in the deadline for completion thereafter.

Therefore, all of the plaintiffs' arguments that the defendant is obliged to pay indirect construction cost due to extension of the construction period with respect to the fifth and sixth and sixth contracts cannot be accepted.

4. Judgment on the second preliminary claim

A. The plaintiffs' assertion

Even if the binding force of the total construction period of the instant overall contract is not recognized, the Plaintiffs and the Defendant extended the completion period of the instant six-party contract from December 10, 2009 to December 31, 2012 through the instant continuing expenditure contract, and the Plaintiffs applied for the adjustment of the contract amount to the Defendant before receiving the payment for the completion of the said six-party contract.

Therefore, the Defendant is liable to pay the Plaintiffs’ indirect construction cost during the construction period extended as above (from December 11, 2009 to December 31, 2012).

B. Determination

First of all, there is no change in the deadline for completion of the sixth multiple contracts as seen earlier.

Next, the plaintiffs argued to the effect that the contract of this case is an amendment to the contract of this case. However, the contract of this case is an annual contract which is concluded when the contract of this case is executed by the method of long-term continuing construction contract, and the contract of this case differs from the contract of long-term continuing construction, and as seen above, the contract of this case has no legal binding force between the parties to the contract as to the total contract of long-term continuing construction and the total construction cost as stipulated in the comprehensive contract of this case, unlike the contract of continuing construction, the contract of this case has to be performed by December 10, 209. ② The six-term continuing construction contract of this case is determined as the contract of this case as the total construction cost of 45,00,000,000 (amended contract amount) and the contract of this case has to be changed to the 2-term continuing construction contract of this case as the total construction cost of 16th,00,000 after the conclusion of the contract of this case.

Thus, through the instant continuing expenditure contract, the Plaintiffs’ second preliminary claim based on the premise that the deadline for completion of the instant six-party continuing expenditure contract was extended from December 10, 2009 to December 31, 2012, is without merit.

5. Conclusion

All of the plaintiffs' claims shall be dismissed because they are without merit.

Since the decision of the first instance court is unfair in conclusion, the defendant's appeal is accepted, and the part against the defendant in the decision of the first instance against the defendant is revoked, and the plaintiffs' claim corresponding to the revoked part is dismissed. The plaintiffs' appeal and the first and second supplementary claims added in this court are dismissed for all reasons

In addition, as seen earlier, the judgment of the first instance court was revoked by this court, and the sentence of provisional execution of the first instance is also invalidated by this decision.

According to the evidence Nos. 2 and 3, the fact that the Defendant paid KRW 10,067,135,105 to the Plaintiff A on August 4, 2017 based on the declaration of provisional execution of the judgment of the first instance court, including KRW 9,060,421,594, and KRW 1,006,713,51, based on the declaration of provisional execution of the judgment of the first instance.

According to the above facts, in the case of Plaintiff A, as the return of provisional payment amounting to KRW 9,060,421,594, and as the defendant seeks, 5% per annum prescribed by the Civil Act from August 5, 2017 to January 8, 2020, which is the date of this court ruling, from August 5, 2017, which is the date of the above receipt of provisional payment amount, [the defendant shall apply 6% per annum, which is the statutory interest rate stipulated in the Commercial Act, from the date of receipt of provisional payment amount to the date of this court ruling] However, since the duty to restore due to the invalidation of provisional execution cannot be deemed as an obligation arising from commercial activities or an equivalent obligation, the statutory interest rate stipulated in the Civil Act should be applied to the damages for delay amounting to the defendant (see, e.g., Supreme Court Decision 2003Da52944, Feb. 27, 2004).

However, in the case of Plaintiff B, the fact that the said Plaintiff deposited the total amount of the provisional payment of KRW 1,006,713,511 as the Daejeon District Court Decision 4157 in June 19, 2019 and the damages for delay from August 4, 2017 to June 19, 2019, which was the date of receipt of the said provisional payment, by the Daejeon District Court Decision 4157, and the fact that the said Plaintiff deposited the total amount of the damages for delay from August 4, 2017 to June 19, 2019 can be recognized either as a dispute between the parties or by the purport of the entire pleadings

It is so decided as per Disposition for the above reasons.