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1. The Defendant shall pay to the Plaintiff KRW 287,808,000 and the interest rate of KRW 15% per annum from January 29, 2016 to the date of full payment.
Reasons
1. Basic facts
A. On July 4, 2014, the Plaintiff entered into a subcontract with the Defendant, setting the construction cost as KRW 50,930,00 with respect to housing construction and scambling construction among the new construction works of building A and B on both sides, setting the construction cost as KRW 111,26,00 with respect to household construction and scambing construction, and concluded each subcontract with respect to each of the above construction works.
B. The Defendant paid to the Plaintiff KRW 374,38,00 out of the total construction cost of KRW 662,196,00 (i.e., KRW 550,930,000, KRW 1111,266,00) in cash, etc. The payment of the unpaid construction cost is KRW 287,808,00.
C. The Plaintiff agreed with the Defendant to receive the above KRW 287,808,00 as a substitute.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings
2. The assertion and judgment
A. The parties’ assertion asserts that the Plaintiff sought payment of the said construction cost of KRW 287,808,000 to the Defendant, and the Defendant agreed with the Plaintiff to pay the said KRW 287,808,00 to the Plaintiff as a commercial building of the main complex building as seen earlier, etc., and thus, the Plaintiff cannot accept the Plaintiff’s claim.
B. 1) Determination 1) Since the payment in kind is a physical contract established when another payment is actually made in place of the original obligation, the original obligation shall be extinguished if the payment in question is a transfer of ownership, and the original obligation shall not be extinguished unless the transfer registration is made (see, e.g., Supreme Court Decision 79Da381, Sept. 11, 1979). The creditor may arbitrarily make a decision to request the payment that is the subject of the original obligation, or to claim the other payment under the promise for payment in kind (see, e.g., Supreme Court Decision 4292Da693, 694, 695, Mar. 3, 1960). Even if the Plaintiff agreed on the payment in kind between the Defendant and the Defendant as alleged by the Defendant, the Plaintiff still becomes the original obligation.