(영문) 서울남부지방법원 2016.09.28 2016가단107

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(영문) 서울남부지방법원 2016.09.28 2016가단107

공사대금 등

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1. The Defendant’s KRW 15,101,520 as well as the Plaintiff’s annual rate from November 26, 2015 to September 28, 2016.

Reasons

1. Facts of recognition;

A. On July 9, 2015, the Plaintiff entered into a construction contract (hereinafter “instant construction contract”) with the Defendant on July 13, 2015, setting the construction cost of KRW 410,00,000 for the extension works of the Defendant Company (Additional tax; hereinafter the same shall apply), the contract deposit of KRW 41,000,000, advance payment of KRW 100,000 (payment within five days after the conclusion of the contract) and July 13, 2015 for the construction works of the Defendant Company.

On the other hand, the provisions relating to the termination of the above contract are as follows.

Article 35 (Cancellation, etc. of Contracts by Plaintiff) (1) In cases falling under any of the following subparagraphs, the Plaintiff may cancel or terminate all or part of the contract:

2. When the period of suspension of construction due to any reason attributable to the defendant exceeds 50/100 of the construction period specified in the contract;

3. If the contract is terminated under Articles 34 and 35, without justifiable reasons, and it is clearly deemed impossible for the defendant to appropriately perform the construction work due to the failure to perform the terms and conditions of the contract, the plaintiff and the defendant shall, without delay, settle the construction amount as completed portion.

(2) If any loss has been incurred due to the rescission or termination of a contract under Articles 34 and 35, the other party may claim compensation therefor from the latter.

B. The Plaintiff issued a contract performance bond and an advance payment bond to the Defendant, but the Defendant failed to pay the said advance payment, and the Plaintiff started construction on July 26, 2015 and continued construction until July 29, 2015, when it was not paid advance payment.

C. Ultimately, on September 17, 2015, the Plaintiff notified the Defendant of the termination of the instant construction contract pursuant to Article 35 of the said construction contract.

[Ground of recognition] Facts without dispute, entry of Gap 1, 2, and 6 evidence, purport of the whole pleadings

2. Termination of the instant construction contract and occurrence of liability for damages

A. According to the above facts of recognition, the Defendant’s advance payment of the instant construction contract is unpaid.

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