Defendant B Co., Ltd. shall pay 40,000,000 won to the Plaintiff and 12% per annum from May 7, 2020 to the day of complete payment.

Basic Facts

A. On September 3, 2018, the Plaintiff agreed to accept a subcontract for soil and aggregate transport at the site of the Gyeonggi-do D D D Corporation (hereinafter “instant construction”) from Defendant B (hereinafter “Defendant B”), and paid KRW 40 million to Defendant B on September 3, 2018.

B. The instant construction was not carried out due to the conflict between the time of the construction and the time of the construction. Accordingly, the Plaintiff failed to transport soil and aggregate on the instant construction site.

【Reasons for Recognition: Each entry in the Evidence Nos. 1 through 7, and the purport of the whole pleadings】

2. The Plaintiff asserted that Defendant C borrowed KRW 40 million from the Plaintiff on condition that Defendant C placed an order for the carriage of earth and sand and aggregate from the instant construction project, but did not transport them, and thus, the Plaintiff should return KRW 40 million. The entries in the evidence No. 7 (E’s statement) also coincide with this.

On the other hand, the Defendant asserts that the Plaintiff paid KRW 50 million out of the cost of opening the site of the instant construction (entry roads, electricity, blasting, and gas station rent) to KRW 50 million. The Defendant did not have any obligation to return the money to the Plaintiff as the prime contractor uses the entire site. However, there is no reasonable explanation as to why the Plaintiff should subsidize the cost of opening the site of the instant construction and what the principal contractor paid the money to Defendant B account is difficult.

Therefore, the Plaintiff’s assertion that the Plaintiff paid KRW 40 million to Defendant B on the condition that the Plaintiff received an order for the carriage of earth and sand and aggregate from Defendant B, is more persuasive. As long as the Plaintiff was unable to transport soil and aggregate due to the failure of construction itself, it is reasonable to deem that Defendant B owned the above KRW 40 million.

On the other hand, the Plaintiff sought the return of KRW 40 million to Defendant B’s operator Defendant C, but Defendant C borrowed with Defendant B.