209 Gohap3800 Penalty

Construction Co., Ltd

Representative Director Kim Kim

Law Firm Cheong-do, Counsel for the defendant-appellant

[Defendant-Appellee]

Construction Corporation

representative director ChoB

Attorney Ansan-soo et al.

March 17, 2010

April 7, 2010

1. The defendant shall pay to the plaintiff 10 million won with 6% interest per annum from July 6, 2008 to April 7, 2010, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. 3/4 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 40 million won with 6% interest per annum from July 6, 2008 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are either disputed between the parties, or there is no dispute between the parties, or Gap evidence No. 1 (the fact that OC has affixed the seal affixed by the representative director of the defendant company's name is without dispute between the parties, and the fact that OC had the authority to act for the defendant is followed. As such, the authenticity of the entire document is presumed to have been established. The defendant defense that OC arbitrarily sealed the defendant's corporate seal and affixed it, but there is no evidence to acknowledge it), and the purport of the whole argument as a whole can be acknowledged in full view of each statement of evidence No. 2.

A. The Defendant is the person ordering the construction work of ○○, ○○, and ○ Ground Construction Work (hereinafter referred to as the “new construction work of this case”) in the area of Gannam-gun, Gannam-gun, and the Plaintiff is a construction company that operates a specialized construction business.

B. On May 16, 2008, the Plaintiff entered into a contract for construction works (including value-added tax) from the Defendant among the instant new construction works (hereinafter “the instant construction works”) with the Defendant, the head of the Defendant Company, and paid 40,000,000 won to the Defendant on June 30, 2008 on the date of the commencement of the construction works (hereinafter “instant contract”). Paragraph (10) of the instant special agreement provides that “If the date of the commencement of the construction works by June 30, 2008, the site establishment is not made by June 30, 2008, the contract amount of KRW 18,150,000 and KRW 40,000,000,000 for the performance of the contract shall be paid to the representative director by July 23, 2008.”

2. Determination on the cause of the claim

A. The parties' assertion

The plaintiff entered into the contract of this case with OC, for which his power of representation was granted by the defendant on May 16, 2008, and the defendant opened and opened a site to enable the plaintiff to lawfully commence the construction work of this case by June 30, 2008, and agreed to pay the plaintiff penalty in the event of non-performance of the construction work. The defendant did not open the site by the above date, and therefore, the plaintiff is liable to pay the penalty and delay damages to the plaintiff.

In this regard, the defendant asserts that the contract of this case is not effective against the defendant, since the defendant, which is only the head of the defendant company, is not entitled to represent the defendant.

B. Determination as to the existence of power of representation and establishment of contract liability

According to the following circumstances, Gap evidence 3, Eul evidence 4-4, Eul evidence 1-5, and Eul evidence 1-9, the defendant company's vice-chairperson c4, which was recognized by some entries in Eul evidence 1-5 and 9, had been accused of forging and exercising the subcontract of this case (Evidence 1) on December 10, 208, for the reason that "OC and the representative director Kim c3 of the plaintiff company committed forgery and uttering of the above complaint of this case", there was an appropriate statement from C4 in the investigation of the above complaint of this case. However, according to the summary of "C4" is that the defendant company's representative director of the defendant company's 1-3 and the defendant company's representative director of the defendant company's 3-4 was not responsible for establishing new contracts of this case, the defendant company's representative director of the 1-3 and the defendant company's representative director of the defendant company was not responsible for establishing new contracts of this case 4-3 and the defendant company's representative director of this case was also responsible for new construction of this case.

(1) Relevant provisions

Article 9 (1) of the Framework Act on the Construction Industry provides that "any person who intends to operate a construction business shall register the construction business with the Minister of Land, Transport and Maritime Affairs as prescribed by Presidential Decree", and Article 7 of the Enforcement Decree of the Framework Act on the Construction Industry provides that the category of construction business and the details of business by type of business under Article 8 of the Framework Act on the Construction Industry shall be specified in attached Table 1. Accordingly, the attached Table 1 divides the construction business into the category of business performing general construction and the category of business performing specialized construction. On the other hand, Article 16 (3) of the Framework Act on the Construction Industry provides that "a constructor who has registered the category of business performing specialized construction shall register the category of business performing general construction that he/she performs in order for a constructor to receive a contract for general construction works,"

[Article 16 (3) proviso of the Framework Act on the Construction Industry]

1. Where a constructor who has filed for registration of the business category of performing general construction works performs a contract jointly with the constructor on condition that he/she executes only the portion corresponding to specialized construction works among works implemented for comprehensive planning, management and coordination;

2. Where he receives a contract for a specialized work and its appurtenant work en bloc; and

3. Where a constructor who has filed for registration of the business category of performing at least two categories of specialized construction works is awarded a subcontract for compound works comprised of such specialized works;

4. Where a constructor registered for the business category of performing the relevant specialized construction works determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs is awarded a contract, which consists of at least two specialized construction works but of which comprehensive planning, management and coordination is not required;

(2) Interpretation of paragraph (10) of the instant special agreement and violation of the special agreement

The Defendant is obligated to establish the instant construction site by June 30, 2008 under the special contract of this case and to take measures so that the Plaintiff may start the construction site until June 30, 2008 pursuant to paragraph (10) of the special contract of this case. In this context, in light of the relevant provisions of the Framework Act on the Construction Industry, the obligation to open the site refers to the specialized constructor, that is, a constructor who has registered the business category of performing specialized construction works, and the Plaintiff, who is merely a constructor who has registered the business category of performing the instant construction works, first of all, entered into a contract for the instant new construction works by selecting a contractor who registered the business category of performing general construction works and concluding a contract for the instant new construction works, and the Plaintiff is obligated to enter into a contract for the construction works of this case with the terms of receiving a subcontract from the contractor. According to the evidence acknowledged above, the Defendant did not select the construction site with the comprehensive construction license until June 30, 2008, and did not submit the construction commencement period to the Gun Office.

D. Determination on the scope of penalty liability

The defendant asserts that the penalty stipulated in the special agreement of this case is scheduled to pay damages, and that the amount of such liquidated damages should be reduced because it is unfairly excessive.

Article 398(4) of the Civil Act provides that an agreement of penalty for breach of contract shall be presumed to be an estimate of the amount of damages, and there is no other evidence to reverse such presumption in this case, so the penalty for breach of contract constitutes an estimate of the amount

On the other hand, Article 398(2) of the Civil Act provides that the court may reduce the estimated amount of compensation in an unreasonably excessive case. Here, "unfairly excessive case" means a case where the payment of the estimated amount of compensation is deemed to result in the loss of fairness by imposing unfair pressure on the person who is economically weak, in light of the general social concept in light of all the circumstances such as the status of the obligee and the obligor, the purpose and content of the contract, the motive behind the scheduled amount of compensation, the ratio of the estimated amount of compensation to the amount of debts, the estimated amount of compensation for losses, the estimated amount of losses, the size of the expected amount of losses, and the transaction practices at the time, etc. (see, e.g., Supreme Court Decisions 86Meu2070, May 12, 1987; 2002Da73852, Dec. 10, 2004).

Considering that the total amount of the construction cost of this case is KRW 18,150,000,000, there is no room to regard the amount of penalty of KRW 400,000,000. However, in light of the fact that the contract performance bond that the Plaintiff paid to the Defendant at the time of the contract is merely KRW 40,000,000,000, and the circumstances leading up to the conclusion of the contract of this case and the details thereof, the degree of the Defendant’s default and the degree of damages inflicted on the Plaintiff, etc., the amount of KRW 400,000,000 equivalent to KRW 40,000 as the contract performance bond of this case paid by the Plaintiff was unfairly excessive as the estimated amount for damages. Accordingly, the amount of damages that the Defendant would pay to the Plaintiff shall be reduced to KRW 100,000,000.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff damages for delay at the rate of 6% per annum under the Commercial Act and 20% per annum under the Special Act on the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, which is the day after July 6, 2008, which is the day following the day when the fulfillment period stipulated in the special agreement of this case is due under the special agreement of this case, to the defendant from July 6, 2008 to the day when the decision of this case is rendered. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, judge;

Judges Song Jae-sung

Judges Kim Gung-soo