(영문) 부산고등법원 2015.1.15.선고 2013나50459 판결

The defendant shall pay the amount of 862,99,784 won and 658,265,64 won among the above amounts and 5.66% per annum from February 1, 2011 to September 6, 2011, the remainder of 204,734,140 won with 5.76% per annum from May 10 to September 6, 2011; 20.76% per annum from the following day to September 6, 201; 30% per annum from the 20% per annum to the date of full payment; 4.6% per annum from the 829,156,656 won to the plaintiff Sam Young Integrated Construction Co., Ltd. (hereinafter referred to as "Yyoung Construction"); and 15% per annum from the 20.5% per annum to the date of full payment; 30% per annum from the 20.15% per annum to the 20.5% per annum; 216.15% per annum from 216.1615

The same shall apply to the order.

Reasons

1. Determination on the cause of the claim

(a) Facts of recognition;

1) On May 28, 2009, the Nam Young Construction and Samyoung Construction (hereinafter collectively referred to as the "the plaintiff's side") divided shares into 51% of the Nam Young Construction and 49% of the building site suspension and construction in Ulsan Foreign Language High School (hereinafter referred to as the "instant construction") and entered into a contract for the construction (hereinafter referred to as the "instant contract for construction") between the Administrator of the Public Procurement Service.

2) Pursuant to Article 2 Subparag. 4 and Article 5-3 of the Public Procurement Service Act, the Defendant is an end-user institution that is obligated to pay the price for the construction contract in question with the Administrator of the Public Procurement Service. Meanwhile, on April 1, 2011, the Nam Young Construction filed a rehabilitation application with the Gwangju District Court 201 Gohap1 and 12, and on May 12, 2011, the instant court rendered a decision on the appointment of Plaintiff A, B as a rehabilitation decision and joint manager, and on December 19, 201, the instant decision on the appointment of the Plaintiff and B was rendered.

3) The Plaintiff received both advance payment and payment for completed portion once through July 7, 201, as indicated in the details of payment for completed portion, according to the progress of the instant construction project. After the Plaintiff’s inspection on January 14, 201, the Plaintiff claimed KRW 2,790,716,950 for the 8-time progress payment to the Defendant around that time. However, on February 1, 2011, the Plaintiff received only KRW 1,500,000 out of the above progress payment and received only KRW 1,50,000 out of the above progress payment, and on May 2, 2011, the Plaintiff claimed KRW 401,439,490 from the Defendant on May 9, 2011.

4) According to Articles 39 and 41 of the General Conditions of the instant construction contract, the head of a procuring entity shall make payment to the contracting party by determining the utility price according to the inspected contents within seven days from the date of completion of the inspection.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5 (including each number), the purport of the whole pleading

B. Determination

According to the above facts, the defendant should pay to the plaintiff 1,290,716,950 won (=2,790,716,950 won - 1,50,00,000 won) and 401,439,490 won (=1,692,49,490 won + 401,716,950 won + 401,439,490 won) and damages for delay on the part of the plaintiff 1,692,125,440 won (= 1,692,79,784,90,000 won - 1,500 won for late payment) and 400 won for late payment (i.e., 1,290, 439,49,490 won) x 164,565 won for late payment (i.e., the defendant should pay damages for delay to the plaintiff remaining joint managers).

2. Judgment on the defendant's defense for repayment

A. Summary of the defense

The third-party technology development corporation (hereinafter referred to as "third-party technology development") and Yangyang Construction Co., Ltd. (hereinafter referred to as " Yangyang Construction") have received a final and conclusive judgment in favor of the Defendant by seeking a direct payment of the subcontract price, and the said subcontract price is related to the instant construction project seeking the payment of the price sought from the Plaintiff as the instant case. Therefore, 66,767,490 won, which is the direct claim amount of the said subcontract price, had already been extinguished.

(b) Fact of recognition;

1) From the Southern Construction on March 8, 2010 to the construction cost of 377,916,00 won in the instant construction project and the construction period from March 8, 2010 to December 17, 2010, Samyang Construction subcontracted the instant construction project. The construction project was subcontracted on February 25, 2010 to the construction cost of 37,30,000 won in the instant construction project and the construction period from February 25, 2010 to December 17, 2010.

2) During December 2010, 300, 300 won and 20,000 won and 20,108,271 won and 20,271 won and 20,000 won and 20,108,271 won and 20,000 won and 20,000 won and 20,000 won and 20,000 won and 2

3) On April 20, 201, 201, chip construction was the recipient of each Administrator of the Public Procurement Service on April 25, 2011, and chip construction was concluded and completed each subcontract agreement with respect to light steel framed construction or US construction among the instant construction works, but it was finally defaulted on April 1, 201. Based on the Fair Transactions in Subcontracting Act and the Framework Act on the Construction Industry, chip technology development was the direct payment of KRW 28,226,00 which was unpaid, 20,000 which was not paid, and 30,008,271 which was the direct payment of KRW 20,00 which was not paid, and the content certification sent by 3chip construction was sent to the Administrator of the Public Procurement Service on April 28, 2011.

4) Based on Article 14(1)1, etc. of the Fair Transactions in Subcontracting Act against the Republic of Korea on July 29, 2011, Samsu Technology Development and Yangyang Construction filed a lawsuit seeking payment of the amount unpaid to the Seoul Southern District Court on June 18, 2013 (No. 2011 group No. 59982), and the said judgment became final and conclusive as it was due to the lapse of the filing period of an appeal.

[Ground of recognition] Facts without dispute, Eul evidence No. 44-1 to 3, the purport of the whole pleadings

C. Determination

According to the above facts, around April 22, 201 or April 28, 2011, for which each of the above contents certification reached the Administrator of the Public Procurement Service, the Defendant’s obligation to pay the subcontract price for third-party technology development and equal construction occurs. At the above time, the Defendant’s obligation to pay the contract price of this case for south Young Construction was extinguished within the scope of KRW 48,334,271 (=28,226,000 + KRW 20,000 + KRW 20,278,271) pursuant to Article 14(2) of the Act on the Fair Transactions in Subcontracting. Thus, the Defendant’s defense of payment is within the scope of the above recognition.

As to this, the plaintiff asserts that, if the defendant pays the subcontract price to Trifriendly technology development on behalf of the South Young Construction and Yangyang Construction, the plaintiff's right to reimbursement arises against the plaintiff's side. On May 12, 2011, the rehabilitation claim is not reported as a rehabilitation claim after the rehabilitation procedure commencement decision was decided on May 12, 201, and even in case of family rehabilitation claim, it is not allowed to offset because the defendant did not express his/her intention of offset before the rehabilitation claim report period expires.

On April 22, 2011 or April 28, 2011, which was prior to the decision of commencement of rehabilitation proceedings on May 12, 2011, the Plaintiff’s assertion on the premise that the Defendant’s obligation for the construction cost for the remaining construction is still remaining due to repayment and that the Defendant’s obligation for the construction cost for the remaining construction is still extinguished within the scope of said obligation, and that the Defendant’s right to indemnity for the remaining construction is no longer likely to arise. Therefore, the Plaintiff’s assertion on the premise that the Defendant’s obligation for the construction cost for the remaining construction is still remaining and that the Defendant’s right to indemnity for the remaining construction is created is not reasonable in itself.

3. Judgment on the defendant's defense of offsetting

A. Summary of the defense

1) A set-off defense against a claim under an agreement with an automatic claim

On September 8, 2010, when the Plaintiff continued to perform the instant construction project, an accident that collapses in two parts of the retaining wall of the reinforced soil (hereinafter “instant accident”), and even though the Plaintiff’s side and the supervisor agreed to jointly implement the instant construction project with the Defendant at the expense of the Plaintiff and the supervisor on December 8, 2010, the Plaintiff paid KRW 1,057,166,746 to the Plaintiff’s side, but the Defendant, not the Plaintiff, paid KRW 1,057,16,746 in total, out of its expenses. Accordingly, even though the Plaintiff agreed to jointly implement the instant construction project at the expense of the Plaintiff’s side and supervisor, the agreement amounting to KRW 1,057,16,746 to the Defendant’s deposit claims against the said Defendants shall be offset against the Defendants’ deposit claims.

2) A set-off defense against a claim for damages arising from joint tort, joint default liability, or warranty liability, against an automatic claim.

After the Defendant’s defective construction work, the remuneration and reinforcement work equivalent to KRW 2,646,05,770 from the filled-up division, cut-off division, and Dong Ridong-dong was performed. In the first place, the liability for joint obligations or the liability for damage arising from joint tort shall be the automatic claim, and the liability for damage arising from the warranty liability shall be offset against the Plaintiff’s claim for the construction cost by the conjunctive claim.

(b) Fact of recognition;

1) On December 9, 2008, the Defendant concluded a contract with G operating a floor comprehensive architectural firm for the purpose of construction and civil engineering design, and entered into a contract for construction and civil engineering supervision with Dongnam Integrated Supervisory Corporation (hereinafter “Dongnam Comprehensive Supervisory Corporation”) around April 9, 2009. Meanwhile, G subcontracted the design of civil engineering in the above design to the Non-Party Y Co., Ltd., the Non-Party Y Co., Ltd., the non-party Y Co., Ltd. again re-subcontract Habbbbbn Co., Ltd. (hereinafter referred to as “Habbbn”) for the said design.

2) On May 28, 2009, the Plaintiff received design drawings, specifications, and ground structure report prepared by G, etc. from the Defendant around May 28, 2009. According to the above design drawings, the retaining wall of the instant case consists of three parts, each of which is filled up vertically, and three parts, the retaining wall height is 6.7m, the retaining wall height is 10.1m, the retaining wall height is 10.7m, the upper part is 4.7m, the retaining wall height is 6m, the horizontal direction of the third part is 6m, and the length of the hyd (e.g., self-rein reinforcement) is 6m, and the length of the hyd (e., re-in reinforcement) is 6m, and that of the upper part is 3rd part of the upper part. (hereinafter referred to as “original design”).

3) On July 20, 2009, apart from the ground survey report received from the Defendant, the Plaintiff’s side requested the Korea Product Quality Examination Institute to conduct the ground survey on the instant construction site, and the result was different from the ground survey result received from the Defendant. On August 6, 2009, the Plaintiff’s side reported it to Dong-nam General around August 6, 2009. On September 2, 2009, Dong-nam General reported the need to change the design because the construction of the reinforced earth retaining wall was not in place in the construction of the instant original design, because the half of the land based on the instant original design was different from the actual ground in the actual site, and the construction of the reinforced earth retaining wall was not in place, and thereafter, the Plaintiff’s side, G, and Dong-nam General requested the Defendant to change the design plan from August 17, 2009 to September 7, 2009 to the nearest 1, 2000 square meters of the size of the Plaintiff’s floor to be changed.

4) As seen earlier on May 28, 2009, the Plaintiff was contracted for the instant construction, starting the construction work without difficulty, and was paid the construction cost accordingly. However, on December 6, 2009, ruptures were continuously discovered on the retaining wall of the instant building, and ruptures and ruptures continuously occurred, the Plaintiff requested the Korean Civil Research Association of the Republic of Korea (hereinafter referred to as the “Korea Civil Research Association”) Daegu-gu and the North Korean Civil Research Association of the Republic of Korea (hereinafter referred to as the “Korea Civil Research Association”) under the Defendant’s direction. Meanwhile, on September 8, 2010, part of the retaining wall of the Plaintiff’s previous retaining wall, which fell under the nature of the instant construction, was collapsed, collapsed on the ground of Eastdong-dong, etc., and collapsed and damaged (hereinafter referred to as the “accident in this case”).

5) Around that time, the Plaintiff, the Defendant, and the Dongnam National University agreed to analyze the causes of the instant accident and the safety of the retaining wall of the cut body through a thorough safety inspection by a reliable agency, and to follow the responsibility relationship. The Defendant requested the Korea Infrastructure Safety Corporation to provide the said analysis services on October 13, 2010 pursuant to the said agreement.

6) On December 15, 2010, on which the Korea Infrastructure Safety Corporation was implementing the said analysis service, Dong Do Do Do dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong Do and the Plaintiff’s side agreed to perform the following works jointly and severally, regardless of the causes of collapse. It refers to the fact that prior notification of a plan to implement long-term restoration work is made, and as regards the administrative consultation, etc. related to the above restoration work, you sent a letter of consultation on December 8, 2010 (Evidence No. 3) with the content that “Ha Do dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong dong Do dong dong Do dong dong Do dong Do dong Do

- - Sound

○ Sections of restoration works: All sections of reinforcements block works

○ Method of Restoration: A method of raising earth and sand pressure;

Restoration Project Operator: Supervisory Director (Dongnam Comprehensive), Si Corporation (Plaintiffs side)

○ Division of Restoration Works: The additional land for public banking (payment to the Office of Education) and the construction cost for banking (main body for restoration works).

7) On December 31, 2010, the Plaintiff’s side notified the Defendant on September 15, 2010, “On September 15, 2010, at the joint conference of the Defendant’s Office of Education, the designer (general floor building office / Dogsan Office), the contractor (the Plaintiff’s side), and the supervisor (joint supervisor) of the result of the safety diagnosis by the Korea Infrastructure Safety Corporation, that it is unreasonable for the Plaintiff, a contractor, to bear the full amount of the cost of the analysis, building, basic, repair, and reinforcement, and that the Plaintiff, a contractor, as the contractor, would be responsible for the performance of the pressure-based construction works, and that the contracting authority and the supervisor, while going beyond all responsibilities in the performance of the construction works, are trying to avoid any liability by abusing their superior position and abusing their superior position, they sent to the Defendant a public notice to the effect that “The details of the consultation made on December 8, 2010, are bound, and revoked.”

8) Meanwhile, on February 14, 201, after completing the above analysis service, the Korea Infrastructure Safety Corporation submitted to the Defendant a full safety examination report of the Ulsan Foreign Language High School (Evidence A5). A summary of the results of the examination, general deliberation and suggestions, and the results of the full safety examination of the filled-up and cut-off department, are as follows.

○ Matters requiring deliberation and suggestions as a result of a thorough examination of a retaining wall of a reinforced soil;

- In the case of reinforced soil retaining walls, it is judged that the reinforced soil retaining walls have been designed and constructed as a structure that fails to meet the design standards for reinforcement walls due to comprehensive causes, such as ground investigation, design, construction, supervision, etc.

-in the case of the collapse of a reinforced earth retaining wall that occurs on the lower part of the building zone, it is determined that the impact of underground water, surface water, etc. on a retaining wall designed and constructed with a structure that fails to meet the above-mentioned design standards is applied and collapsed.

- The collapse of the retaining wall that occurred on the eroke line may also be determined that the concentration of response power generated by applying the erogical erogical erogical erogic retaining wall to the erogical erogic erogic erogic erogic erogic erogic erogic

- A plan for reinforcement of a reinforced retaining wall that is designed and constructed in a state that has failed to meet the design standards and that is judged not to secure adequate stability at present would be a method of raising pressure on the front of the reinforced retaining wall and securing safety by adding drainage facilities such as rocks.

- Even after reinforcement by pressure-banking, it is judged desirable to continuously manage not only buildings installed with measuring instruments but also pressure-bankings through measuring.

○ Total deliberation and suggestions as a result of the close safety part of the ebbburging section of the area

- It is analyzed that the existing design is stable, but it is analyzed that the stability is likely to be collapsed in some sections by using the stratos structure and ground properties that have been analyzed in the gold safety diagnosis.

- As a means of reinforcement for the sections with a possibility of collapse in the field of a scale turbing, it is suggested that the method of drilling the afforestation after construction on four days or to secure the stability of the sloped by concurrently constructing a four-day and shooting block and recording inside the block, and further, to remove the unstable factors due to inflow of the base water inflows into the scale turbing section, it is suggested that the method of expanding the drainage facilities for the entire section of the scale turbing.

- Even after reinforcement by four days, it is judged that continuous management is necessary through the measurement of the scale slopings.

○ A summary of the results of the precise safety diagnosis (the retaining wall of this case)

The problem in the revised design is that, like the original design, the influence of the upper retaining wall was not considered properly, and as a result, the internal stable interpretation was conducted by reproducing the state of design modification, even though some of the length of the reinforced materials increased, the structural stability has not been ensured because it is shorter than the length required for securing stability in some sections, and because there are water system, outflow water and underground water on the upper half of the site, it is necessary to minimize the impact of drain water on the repair condition by applying the back-flowing materials, etc. to the reinforced retaining wall as stipulated in the design standard for the non-sloping of the new construction works, but it was not considered at the time of design modification.

- Construction problems: As a result of a field investigation, it is deemed that some sections of the sections used as back cover of the reinforced soil retaining wall with the entrance standards specified in the construction specifications, and it was found that more than 300 meters of aggregate was used as back cover of the reinforced soil retaining wall. In the case of the thickness of construction works, according to the standard specifications of the non-sloping surface, it is specified as below. However, in the case of construction works, more than 30 centimeters of aggregate were used as back cover of the reinforced soil retaining wall with the thickness of not less than 30 centimeters, it is determined that construction works would have been completed without the thickness of the double floor, but the technical review is somewhat insufficient.It was analyzed that the construction standards have not been applied properly to the ground investigation, design specifications, construction situations, etc., and the fault of the retaining wall collapse caused by the reinforcement of the retaining wall of this case.

- Issues in the supervision: A comprehensive examination of the application of the construction work standards and its suitability, such as ground investigation, design drawings, specifications, construction situations, etc., seems to be somewhat insufficient.

○ Summary of the result of the precise safety diagnosis on cutting off (scale slope)

- The problem in construction is found to have been insufficient to treat drain water in the construction, and in the case of a small-scale block for piling-up contribution in the surface protection form, the size of a small-scale drainage hole is small, and part of it is installed as a PVC product. In this case, it is understood that if the fast-down situation with the ground is not maintained completely, it would be likely to increase the excellent erosion rather than that if the fast-down situation with the ground is not maintained completely. Through the appropriate technical review of design plans, specifications, etc., it is somewhat insufficient to secure stability in relation to the city airspace, but the relevant technical review is somewhat insufficient.

9) After June 10, 201, the Plaintiff and the Defendant concluded a contract for the Eastdong Recovery and Reinforcement Works according to the results of the precise safety diagnosis conducted by the Korea Facility Safety Corporation. The Plaintiff completed the Eastdong Repair and Reinforcement Works in accordance with the said contract. The Defendant paid 241,891,000 won for the said repair and Reinforcement Works to the Plaintiff.

10) On March 6, 2012, the Plaintiff’s side and the Defendant concluded a contract for filling-up and cutting-off and reinforcement works according to the instant judgment. On the other hand, the Defendant paid construction expenses + (i) the total expenses paid in the course of filling-up and cutting-off and reinforcement of earth and sand in accordance with the said contract; (ii) the amount of expenses paid by the Defendant in the course of performing the works for restoring and reinforcement of Dongdongdong and Ridong, etc. (hereinafter “the instant additional works”); (iii) KRW 241,890,000, KRW 60, KRW 70, KRW 300, KRW 60, KRW 60, KRW 30, KRW 60, KRW 30, KRW 50, KRW 60, KRW 30, KRW 60, KRW 40, KRW 50, KRW 60, KRW 30, KRW 50, KRW 60, KRW 50, KRW 60, KRW 360, KRW 460, KRW

11) Meanwhile, around August 2013, the Korean Civil Association submitted to the Defendant an interim report on the cause of the instant accident, and the results of the comprehensive analysis are as follows.

○ A reinforced soil retaining wall shall be designed under the condition that it does not affect water pressure (including groundwater) on the rear side of the retaining wall at the time of designing.

Since civil engineering structures such as retaining walls have many parts that are difficult to predict topography and geological features in designing, it is necessary to constantly supervise construction sites and design drawings for each construction phase, even before the commencement and construction, and if necessary, to revise and supplement them by comparing and reviewing the site and design drawings for each construction phase.

○○ The retaining wall of this case seems to be insufficient to meet the design standards by calculating the upper end of the retaining wall at the time of design. In other words, it is determined that the design standards are satisfied in the process of design, but it is not possible to meet the design standards in the upper end. The stability evaluation of the precise safety diagnosis of retaining wall of the RW-1 retaining wall where the highest collapse occurred was found to be Category C (D or E grade in the shape evaluation of the retaining wall which was collapsed after collapse).

○ There was a separation between the fronts of the retaining wall of this case and the foundations of the surrounding buildings due to errors in the order of construction of retaining wall of the retaining wall and the retaining wall of this case.

○ It is judged that it is physically difficult to secure 96% of the level of embanking body containing approximately 300m of 30m or more of 19%.

○ In the construction of the retaining wall of the reinforced soil and on-site management, defective back-up materials (not less than 300m, but not less than 19%) have been used due to non-compliance with the construction supervision regulations, and there was a duplicity.

○ The basis of the surface of the earth due to non-compliance with the construction sector regulations by the construction sector, and the infiltration has been acceleratingd by the surface of the land sector.

It is difficult to explain differently the ground for the collapse of the reinforced wall except for the escape of the reinforced block due to the decline in support power of the foundation foundation due to the infiltration of surface water by the infiltration, earth pressure, and water pressure.

The appearance of the collapse site is not the length of reinforcement, but it is judged that ground water(during water) generated by infiltrating the surface water into the filled-up floor (including the foundation part of the building), mainly caused the subsidence of the foundation part of the reinforced retaining wall and the concentration of response force, and the collapse of ground water is an important cause for the collapse of the retaining wall of the reinforced soil.

○ It is judged that all the persons in charge of design, supervision, and construction are insufficient to perform their duties at the outside of Ulsan. [based on recognition] Facts without dispute, Gap evidence Nos. 5, 10, Eul evidence Nos. 2, 3, 16, 20, 23, 27, 28, 29, 30, 34, and 40 (including each number), witness of the court of first instance, H of the court of first instance, the witness of the court of first instance, the witness of the court of first instance, and the purport of the whole body of pleadings.

C. Determination as to the defense of offsetting the claim of the agreed amount with the automatic claim

The following circumstances are acknowledged by the overall purport of the evidence and arguments as follows: ① The contents of the above agreement submitted by the Do-nam General to the Defendant are difficult to be deemed to have consulted on the implementation of the Do-based Do-based Do-based Do-based Do-based Do-based Do-based Do-based Do-based Do-based Do-based Do-based Do-based Do- based Do-based Do-based Do-based Do-based Do- based Do- based Do- based Do- based Do-based Do- based Do-based Do- based Do-based Do- based Do-based Do- based Do-based Do- based Do-based Do- based Do-based Do-based Do- based Do-based Do-based Do-based Do- based Do-based Do-based Do-based Do-based Do-based Do- based Do-based Do-based Do-based Do Do- based Do- based Do.

D. Determination as to the counterclaim against set-off against the joint liability, joint tort, or liability for warranty against the person who has the damage claim based on the joint liability, joint tort, or warranty liability

1) Design negligence on the instant construction project

According to the above evidence and facts, it should be designed as a double-entry retaining wall in light of the interaction between the reinforced earth and sand that designs the upper part of the reinforced earth and sand combined with three parts, in particular the impacts caused by the underwater of the upper retaining wall. However, in the revised design, the simple retaining wall of an independent unit is not designed as a double-entry retaining wall like the original design, and the simple retaining wall of an independent unit was accumulated with three floors. As a result of an individual stability review on each part of the upper part of the reinforced earth and sand at home, it was found that the lower part did not consider the load of the reinforced earth and sand operated in the upper part when examining the stability of the reinforced earth and thus, it was found that the entire inner part of the reinforced body did not affect the lower part of the retaining wall and properly designing it with the upper part and securing stability by properly designing it with the upper part and the lower part of the reinforced wall, and thus, the additional construction was caused by the negligence of the construction in this case.

In addition, the defendant also sought the modified design service cost for the cut cutting part under the premise that there was negligence in the modified design on the cutting cutting part, and thus, the defendant did not specify what is the negligence in the modified design on the cutting cutting part, and the actual collapse risk is due to the error in construction (the defendant's preparation on November 6, 2014) and even based on the detailed report on the precise safety diagnosis service of the Korea Infrastructure Safety Corporation (Evidence A). In light of the fact that the contents of the negligence in the design on the cutting part are not specified in the design on the cutting part, the evidence submitted by the defendant alone is insufficient to recognize the negligence in the design on the cut part, and there is no other evidence to acknowledge it, and this part of the defendant's assertion is without merit.

2) Fruits related to the design of the construction project for the instant construction project

Comprehensively taking account of the following circumstances acknowledged by the above evidence and factual basis, the Plaintiff as the Plaintiff’s side of the specialized construction business chain, with due care, could have known or could have known the impact on the load of the upper retaining wall, as a result of the failure to design the complex retaining wall, and thus, the Plaintiff’s negligence on the part of the Plaintiff, who did not properly examine whether the construction cannot be executed as revised design, was the cause of the instant additional construction.

① Article 23-2 of the Construction Technology Management Act and Article 33 subparag. 2 of the Enforcement Rule of the Construction Technology Management Act provide that a building proprietor, i.e., a contractor, shall examine whether the construction part can be executed in accordance with the design documents and report to the contracting authority. ii) The Plaintiff’s side only reported the result of the ground inspection to the Defendant, who is the main agent, that the ground is different from the original design, and did not report to the contracting authority the impact on the lower part of the retaining wall or

② One of the main causes of the instant accident was the impact of the upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper retaining wall or the composite retaining wall design was not achieved (the upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper lower part of the instant accident was known to have been designed due to the impact of the upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper upper lower part of the instant accident or the design of the upper upper upper upper upper upper upper lower part of the instant accident (No. 37 evidence 5).

③ Considering the impact on the lower part of the upper part of the retaining wall or the need for the complex retaining wall design, the length of the reinforced material is far longer than the revised design at the upper part and lower part (No. 37-9), which eventually leads to the increase in the material cost and the construction cost on the Plaintiff side.

3) Independent negligence of the Corporation as to the instant construction

Comprehensively taking account of the following circumstances acknowledged by the above evidence and factual relations, the Plaintiff’s independent negligence on the part of the contractor (design review) caused the instant additional construction.

① Despite the fact that groundwater and surface water infiltration on the ground of the instant accident was one of the main causes of the instant accident, the Plaintiff’s side constructed without considering it. In particular, the Plaintiff’s use of aggregate at least 300 meters from the back of the retaining wall of reinforced soil was 19%, contrary to the level of entrance specified in the construction specifications, and the use of aggregate at least 300 meters from the back of the retaining wall of reinforced soil was 350 meters, causing the instant accident by accelerating the infiltration of groundwater and surface water, is a common analysis of the safety diagnosis of the Korean Infrastructure Safety Corporation and the Korean Civil Aviation Association. The Plaintiff’s side did not take appropriate measures at the time of the instant accident even though the rupture and change occurred continuously from December 6, 2009. In light of the fact that the instant accident occurred in the process of accumulating such rupture and change, the Plaintiff’s failure to perform the instant work and the additional construction caused the instant accident.

The plaintiff asserted that this part cannot be viewed as a negligence in the construction because it was evaluated as a result of the safety diagnosis conducted by the Korea Infrastructure Safety Corporation as satisfying the criteria for the result of the safety diagnosis, but it is merely the fact that the average value of earth and sand between reinforcement materials has been secured more than the standard time limit (No. 5) and that the use of aggregate more than 300 meters in diameter is not a defective construction, nor a ground for the instant accident, so the plaintiff's above assertion by the plaintiff cannot be accepted.

② On the other hand, cutting part also did not properly treat drainage while the Plaintiff performed construction, and the size of the small drain hole is small, part of the small drain hole causes concerns over the increase of outstanding erosion by installing it as a PVC key product, which makes it difficult for the Plaintiff to perform the instant additional construction on cutting part. As such, the negligence on the construction of the Plaintiff’s side as above caused the cutting part to be one of the instant additional construction works on cutting part.

4) Fruits in supervising the instant construction project

According to the above evidence and facts, negligence in supervision, which failed to comprehensively examine whether the construction standards for ground investigation, design documents, specifications, construction situations, etc. have been properly applied, and the suitability thereof, has become the cause of the instant supplementary construction.

5) The occurrence of the Plaintiff’s liability for damages against the instant Additional Works (the existence of an automatic claim)

Therefore, as the negligence of the Plaintiff, designer G, and Dongnam Comprehensive, a supervisor, the contractor, concurrently incurred damages equivalent to the amount obtained by deducting the modified design service cost for the cutting of the cutting from the cost of the instant additional construction due to the instant accident, etc., the Plaintiff’s side, as a joint debtor or joint tortfeasor, shall be jointly and severally liable to compensate the Defendant for the said damages.

6) Scope of liability for damages (Scope of automatic claims)

According to the above facts, the defendant paid 2,614,612,470 won for the additional construction costs of this case due to the negligence on the part of the plaintiff et al. (2,646,05,770 won for the total expenses paid (2,646,05,770 won for the modified design service cost for cutting the ground, 31,443,300 won). However, the scope of damages is 2,614,612,470 won. However, the defendant actively participated in the process of changing the original design and actively participated in the construction process, including several meetings, and was directly involved in the construction process; the defendant entered into a direct design and supervision contract; the defendant's liability on the part of the plaintiff should be limited to 70% for the damages; if the damages is calculated accordingly, the plaintiff shall be jointly and severally paid the 1,830,2729,294,2614,2767) and damages for delay.

7) Judgment on the defendant's defense of set-off

Meanwhile, while both the Plaintiff’s claim for construction cost and the Defendant’s claim for damages have become due, it is clear in the record that the Defendant expressed to the Plaintiff on September 5, 2013 at the first day for pleading of the first instance trial, that the Defendant set off the above two claims on an equal amount. As such, the Plaintiff’s claim for public bond amounting to KRW 48,334,271, which has already been extinguished due to repayment, should be extinguished within the scope of KRW 1,643,82,169 (i.e., KRW 1,692, 156,40), KRW 48,334,271 (i.e., KRW 1,692, KRW 156,40), KRW 48,334,271) of the Defendant’s claim for damages.

Therefore, the above offset defense of the defendant is well-grounded (only when the damage claim based on the warranty liability, which is a preliminary defense, is recognized, the liability limitation can be limited, and thus, the amount of the automatic claim is identical to the amount of the automatic claim. Thus, the defendant did not separately decide on this claim, and in the case where there remains any amount remaining after the above offset defense in the trial, the amount equivalent to 164,565,576 won, which the defendant received from the Han Kan Technology Co., Ltd. for the direct payment of the subcontract price, shall be the preliminary defense that the plaintiff's claim for the construction price of this case was extinguished. However, as seen earlier, as long as the defendant's counterclaim was accepted, and the plaintiff'

The plaintiff asserts that damages for delay in the amount of KRW 1,692,156,440 are set-off claims. However, in case where there is a defect in the completed object in the contract or where the contractor is liable for damages due to default or tort in connection with the performance of the contract, the contractor's right to claim damages has a relationship of simultaneous performance with the contractor's right to request the payment of the contract price. Thus, the plaintiff's assertion on this part is without merit, unless there are special circumstances.

5. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked, and all of the claims of the plaintiff shall be dismissed, and it is so decided as per Disposition.

Judges

Exemplary (Presiding Judge)

Clinical Citizens

Notarial decoration;

Note tin

1) Fair Transactions in Subcontracting Act

Article 14 (Direct Payment of Subcontract Price)

(1) Where a cause falling under any of the following subparagraphs occurs, the project owner shall perform manufacturing, repair, construction, or service performance by the subcontractor:

The subcontract price equivalent to the portion shall be directly paid to the subcontractor.

1. A prime contractor's business due to the suspension of payment, bankruptcy, other causes similar thereto, or the revocation of permission, authorization, license, registration, etc. for the business;

Where it is impossible for a person to pay the subcontract price and the subcontractor requests a direct payment of the subcontract price.

Enforcement Decree of the Fair Transactions in Subcontracting Act

(2) Where any cause under paragraph (1) occurs, the obligation to pay the price to the principal contractor and the principal contractor's subcontract price to the subcontractor.

A debt shall be deemed extinguished within the extent of the debt.

Article 9 (Direct Payment of Subcontract Price)

(1) Any request for direct payment by a subcontractor under Article 14 (1) of the Act shall take effect when the declaration of intention thereof reaches the ordering person, and a statement of intention shall take effect.

The subcontractor shall prove that the market has reached the market.

(3) An ordering person shall be liable to pay the subcontract price directly to the principal contractor within the scope of the obligation to pay the price.

(ii)Construction Technology Management Act;

Article 23-2 (Preparation, etc. of Design Documents)

(2) A specialized construction-supervising firm or registered housing constructor shall design and submit a design and other service provider prepared and submitted before performing the relevant construction works.

It shall review the books in advance and report the result thereof to the contracting authority which has ordered the service, such as design, and the contracting authority shall, upon receipt of the report,

The necessary measures, such as correction and supplementation, shall be taken to the design service provider, such as design.

Enforcement Regulations of the Construction Technology Management Act

Article 33 (Examination of Design Documents)

A specialized construction-supervising firm, constructor or registered housing constructor pursuant to Article 23-2 (2) of the Act (registration of a housing construction business operator pursuant to Article 9 of the Housing Act

one person; hereinafter the same shall apply) shall examine design documents as follows:

1. Whether the contents of the design document conform to the on-site conditions;

2. Whether construction works can be executed in accordance with design documents;

3. Other matters related to execution.