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The part concerning counterclaim in the judgment of the first instance shall be modified as follows:
Plaintiff (Counterclaim Defendant).
Reasons
1. Basic facts
A. On March 15, 2014, the Plaintiff entered into a construction contract with the Defendant for a new hotel construction project in Seopo-si (hereinafter “instant construction project”) with respect to the construction cost of KRW 2,050,000,000 and the construction period until January 30, 2015 (hereinafter “instant construction contract”).
B. On April 2014, the Plaintiff and the Defendant drafted a written contract for a construction project that increases the construction cost of KRW 2,500,000,000 (However, the date of preparation under the contract for a construction project was written on March 15, 2014; hereinafter “instant secondary contract”) and concluded a contract for a construction project that increases the construction cost of KRW 3,00,000,000 on January 6, 2015.
(hereinafter “instant third construction contract”. As seen above, each of the instant construction contracts concluded between the Plaintiff and the Defendant is collectively referred to as “instant construction contract”).
C. On January 28, 2015, the Plaintiff completed most of the construction works stipulated in the instant construction contract, and obtained approval for use on February 12, 2015, and was paid by the Defendant totaling KRW 2,893,173,00 as construction cost from March 19, 2014 to March 18, 2015.
[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2, and 4 (including each number; hereinafter the same shall apply)
2. Summary of the principal lawsuit and the counterclaim;
A. The summary of the Plaintiff’s main claim is that the Defendant paid KRW 2,893,173,000 to the Plaintiff as the construction cost, but it did not receive KRW 209,00,000 in total after having four subcontractors pay the Plaintiff’s subcontract price in excess. The amount returned cannot be included in KRW 2,893,173,000 in the construction cost paid by the Defendant.
Therefore, the construction cost that the Defendant did not pay to the Plaintiff is KRW 315,827,00 (=3,00,000,000 - 2,684,173,000 (=2,893,173,000 - 209,000). Thus, the Defendant and the Plaintiff are the said money.