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1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1..
Reasons
1. Facts of recognition;
A. The Plaintiff is a person engaged in a construction business such as a specialized Hoho Lake and miscellaneous hardware with the trade name of “C,” and the Defendant is the owner of a new construction business of “E” on the ground D of Busan Dongdong-gu, Busan.
B. On September 27, 2017, the Defendant entered into a contract for construction cost of KRW 48,400,000 (including value-added tax of KRW 4,400,000) with respect to the said new construction works (hereinafter “instant construction works”).
C. The Plaintiff completed the instant construction on or around February 14, 2018, and the Defendant completed the registration of ownership preservation with respect to E on November 20, 2018.
Meanwhile, from September 28, 2017 to February 14, 2018, the Defendant paid to the Plaintiff KRW 40,000,000 out of the construction price of the instant case four times in total.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, and 5, the purport of the whole pleadings
2. Determination
A. According to the above findings of determination as to the cause of the claim, the Defendant is obligated to pay the unpaid construction cost of KRW 8,400,000 (total construction cost of KRW 48,400,000 - the fixed construction cost of KRW 40,000) and damages for delay calculated at the rate of 12% per annum as prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. from April 6, 2019 to May 31, 2019 as the date following the date of service of the instant payment order, as requested by the Plaintiff, as the Plaintiff, after completing the construction work.
B. On the other hand, according to the reasoning of the Defendant’s argument, the Defendant’s deposit of KRW 8,915,015 with the Plaintiff as the principal of the deposit on September 25, 2019 according to the judgment of the first instance court ordering provisional execution on September 25, 2019. However, the effect of repayment due to provisional execution is not final and conclusive.