[1] Where a contractor’s contract for construction work is terminated without completion of construction work, the method of calculating the construction cost based on the work period for settlement, and where special circumstances are acknowledged, such as the existence of an agreement between the parties to the contract on the repair of a unredeemed building (the part on the completed construction) to be paid by the contractor, whether the construction cost can be calculated otherwise (affirmative)

[2] The probative value of appraiser's appraisal result

[1] Articles 105, 543, 548(1), and 664 of the Civil Act / [2] Article 741 of the Civil Act, Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 93Da25080 Decided November 23, 1993 (Gong1994Sang, 179) / [2] Supreme Court Decision 2010Da93790 Decided November 29, 2012 (Gong2013Sang, 5) Supreme Court Decision 2011Da10319, 103205 Decided January 24, 2013, Supreme Court Decision 2016Ma272 Decided December 17, 2018 (Gong2019Sang, 286)

Co., Ltd.

Busan High Court Decision 200Na1448 delivered on August 1, 200

Sast Co., Ltd. (Law Firm Han, Attorney Park Jong-tae, Counsel for the plaintiff-appellant)

Busan High Court Decision (Capwon) 2017Na20220, 20237 decided January 11, 2018

The independent party intervenor's appeal is dismissed. The costs of appeal are assessed against the independent party intervenor.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 and 4

A. Where a contractor is required to settle construction costs due to the rescission of a construction contract without completion of construction work and the settlement of construction costs due to a work progress, such construction costs shall be based on the agreed total construction cost between the parties, barring any special circumstances. However, where special circumstances exist, such as where there is an agreement on the repair of a building with which the contractor is obligated to pay between the parties to the contract, it is reasonable to deem that such agreement may be otherwise calculated (see Supreme Court Decision 93Da25080, Nov. 23, 1993). Furthermore, the appraiser’s appraisal result should be respected unless there is obvious fault, such as the appraisal method, contrary to the empirical rule or unreasonable (see, e.g., Supreme Court Decision 2011Da10319, 103205, Jan. 24, 2013).

B. The records revealed as follows: ① the general conditions of the construction contract of this case (amended by Ordinance of the Ministry of Public Administration and Security No. 253, Aug. 6, 2009) apply to the contract of this case; according to the above general conditions N-4-E items, the term cost is calculated and paid based on the agreed unit cost; ② the plaintiff, the independent party intervenor (hereinafter referred to as the "participating") and the defendant's design modification statement (2) of the 2013 design statement (2012), which were prepared by the plaintiff and the defendant around November 2013, 2013, it is reasonable to view that the plaintiff and the intervenor paid excessive construction cost to the plaintiff and the intervenor within the scope of the 1,307,300,000 won (including value-added tax) as the whole, and there is no reasonable ground to view that the defendant paid excessive construction cost to the plaintiff and the intervenor within the scope of 300,000 won (including value-added tax) with respect to the construction cost in this case.

In addition, such judgment of the court below may be deemed to include the purport of rejecting the Intervenor’s assertion that “If an application for the adjustment of the price for construction works is to be made within the prescribed period under a different contract, the Defendant’s claim for the return of the excessive payment should also be made within the fixed period, and the Defendant cannot claim the return of the excessive payment in lump sum, regardless of the contract by the following types.” The Defendant’s excessive payment is only the object of return of unjust enrichment by the Plaintiff and the Intervenor, and is irrelevant to the adjustment of the construction cost due to the extension of the construction period by the following number of contracts. Therefore, the Defendant’s claim for the return of the excessive payment in advance against the Plaintiff and the Intervenor does not require the procedural requirements for the adjustment of the price for construction works. Accordingly

2. Regarding ground of appeal No. 2

For reasons indicated in its holding, the lower court determined that the construction cost that the Defendant paid to the Plaintiff and the Intervenor in excess of the judgment prior to the completion of the instant construction work was paid without any legal ground, and that the Defendant could not be deemed to have paid the construction cost even though

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on repayment of bad faith, contrary to what is alleged in the grounds of appeal.

3. As to the third ground for appeal

For reasons indicated in its reasoning, the lower court determined that it is difficult to view the Defendant’s notice of excess payment on July 11, 2014, solely based on the evidence presented by the Intervenor, as an expression of intent to finally conclude the settlement of construction cost between the Plaintiff, the Intervenor, and the Defendant.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the interpretation of

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-hyung (Presiding Justice)