(영문) 광주고등법원 2014. 11. 7. 선고 2013나5786 제1민사부 판결

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 496,252,248 won with 20% interest per annum from the day after the delivery date of the complaint to the day of complete payment.

Reasons

1. Basic facts

O The Plaintiff was awarded a contract for the construction work of a mining-sea dynamics complex (the first unit system) from the office of the construction work of the leisure port in the National Fisheries and Fisheries Office (hereinafter referred to as "the construction work of this case"). On January 10, 2005, the Plaintiff entered into a subcontract with the Defendant for the construction work of soil, reinforced concrete, and water supply and sewerage among the construction work of this case, and entered into a subcontract for the construction work of this case by dividing it into 1, 2, and 3 parts for convenience.

O On March 15, 2006, the Plaintiff entered into a subcontract with the Defendant for the construction cost of 3,167,879,000 won (including soil work 1,321,881,00 won, reinforced concrete work 1,000 won, 1,009,162,000 won for reinforced concrete work, 836,836,000 won for water supply and drainage, value added tax), period of construction from March 15, 2006 to December 106, 206.

On November 1, 2006, the Plaintiff entered into a contract with the Defendant to change the construction period from March 15, 2006 to December 22, 2006 (including value added tax of KRW 1,719,50,000, and KRW 1,520,20,000, and KRW 1,745,700,000, and KRW 1,745,700,000, among the terms and conditions of the said contract (hereinafter referred to as “the instant contract for construction”).

O On August 16, 2007 and October 1, 2007, the Plaintiff notified the Defendant of the final settlement to be paid by the Plaintiff under the instant construction work as KRW 53,987,014.

On the other hand, around May 201, the Defendant received, from the Plaintiff, the amount of 241,540,060 won agreed to compensate for losses for the first portion of the construction contract in relation to the instant construction contract, ② the amount of 14,280,126 won, ③ the amount of 172,762,968, ④ the amount of 240,61,377, ⑤ the amount of the order for the third portion of the construction work, ⑤ the amount exceeding 78,418,943 won, ④ the amount of 50,90,000 won for the payment of the construction cost, ④ the amount of 90,50,000 won for the third portion of the construction work, ④ the amount of 120,467,939,131,413,500 won for the first portion of the construction contract, ④ the amount of 90,50,090,000 won for the aforementioned construction work cost, 9050,0,050.

Pursuant to the Arbitration Act No. 1111-0082 on October 18, 2012, the arbitral tribunal of the Korean Commercial Arbitration Board rejected the award on the ground that there is no evidence to acknowledge the plaintiff's defense of the offset. The arbitral tribunal rejected the award on the ground that there is no evidence to acknowledge the plaintiff's defense of the offset.

O) On November 16, 2012, the Plaintiff was dissatisfied with the foregoing arbitral award and filed a lawsuit for setting aside the arbitral award against the Defendant Panel, Seoul Central District Court 2012Gahap96972, and the said court dismissed the Plaintiff’s claim on June 21, 2013. The Plaintiff appealed against the said judgment (Seoul High Court 2013Na49420) but the said appellate court dismissed the Plaintiff’s appeal on March 18, 2014, and the said judgment of dismissing the appeal became final and conclusive around that time.

[Ground of recognition - Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 1, 11, 12, Eul evidence 6, 7, 1.8, 19, 20, the purport of the whole pleadings and arguments]

2. Determination as to the claim

A. The parties' assertion

1. The plaintiff's assertion

Even if the Defendant received full payment of the construction cost under the instant construction contract from the Plaintiff, the Defendant renounced the construction work on March 3, 2007. Accordingly, the Plaintiff employed the Plaintiff as a self-employed employee, etc. until May 30, 2007 and paid KRW 496,252,248 as the Plaintiff completed the instant construction work. As such, the Defendant is obligated to pay the Plaintiff the said KRW 496,252,248 as compensation for damages incurred due to the nonperformance of the instant construction contract, and the delay damages therefrom.

2. The defendant's assertion

O) Around March 2006, the Defendant accepted a subcontract for soil works, reinforced concrete works, and water supply and drainage works only with respect to the third parts of the instant construction works, among the third parts of the instant construction works, from the Plaintiff. After completing the above-mentioned 1 and 2 works, the Defendant suspended the above-mentioned 3 works around September 2006. Accordingly, the Plaintiff and the Defendant agreed on October 2, 2006 to terminate the instant construction contract and made a settlement of accounts.

O) From September 2006, when the Plaintiff directly executes the three sections of the non-contractual unit construction, the Plaintiff entered into a subcontract agreement on the said three sections of construction in the name of the Defendant because of the contractual relationship with the ordering authority. In addition, around December 2, 2006, the Plaintiff and the Defendant entered into an agreement with the Defendant to separately repair the defects between the Defendant’s construction section and the Plaintiff’s direct construction section.

O In the preceding arbitration case, the Plaintiff filed a set-off claim against the Defendant’s labor costs and construction cost subrogated to the Defendant’s labor costs and construction cost, and the Plaintiff’s employees and equipment incurred in the construction of this case, claiming that the construction of this case was completed by directly inserting the Plaintiff’s employees and equipment. However, even though the instant arbitral award rejected the Plaintiff’s above-off claim, the Plaintiff asserted the damage claim based on the same factual basis in this case. The Plaintiff’s claim is contrary to the res judicata effect of the said arbitral award, and even if the res judicata effect does not extend to the instant arbitral award, accepting the Plaintiff’s claim is contrary to the validity of the said arbitral award

O The contract of this case was terminated by the Plaintiff and the Defendant’s settlement of accounts for the instant construction works, and thereafter, the Plaintiff paid the remainder of the construction works under the direct management. In the process, the Defendant did not have any obligation to compensate the Plaintiff for damages, as there was no intention or negligence by the Defendant.

B. Determination

1) Whether the arbitral award conflicts with res judicata

An arbitral award has the same effect as the final and conclusive judgment of a court between both parties (Article 35 of the Arbitration Act), and res judicata of a final and conclusive judgment means the binding binding force in which the parties concerned are unable to make any arguments that conflict with this, and the court is unable to make any decision that leads to this (see Supreme Court Decision 86Meu2756, Jun. 9, 1987). Therefore, unless an arbitral award is void automatically or is revoked by the judgment that has become void, it shall not make any arguments inconsistent with this Opinion.

The court below rejected the plaintiff's claim for unjust enrichment return of KRW 1,01,00,220 (=5,996,459,220) excessive disbursement of KRW 1,96,459,220 (= 5,996,459,220 - 4,985,4500 - 4,585,450,000) as the defendant's claim for unjust enrichment return of KRW 60,00,00 as the defendant's claim for damages under the direct jurisdiction of the court below, on the ground that the plaintiff's payment of construction expenses for the defendant's construction participant, part of additional construction expenses claimed by the defendant, and subrogated payment of construction expenses for the plaintiff's worker and construction participant for the completion of the construction in this case, etc.

According to the above facts, res judicata recognized in the arbitral award of this case can only affect the non-existence of a claim for return of unjust enrichment claimed by the plaintiff as a passive claim, and it does not extend to the damage claim claimed in the original high-priced case as a different subject matter of lawsuit. Therefore, the defendant's assertion is without merit.

2. Whether direct construction is performed;

On March 15, 206, the Plaintiff’s direct management of the instant construction works with the Defendant 1, 200, KRW 3,167,879,00 for construction work, and KRW 10 through December 15, 2006 for the construction period of KRW 20,00 for the instant construction works. The Defendant concluded a subcontract with the Defendant 1,50,000 for the instant construction works with the Defendant 1,00,000 for the instant construction works with the Defendant 20,000,000 for the instant construction works for KRW 4,985,450,00 for the instant construction work, and the amount of construction work for KRW 1,67,00 for the instant construction work to be adjusted to KRW 9,70,00 for the instant construction works. The Defendant concluded a contract with the Plaintiff 2,00,000 for the instant construction work to be adjusted to KRW 1,70,006,000 for the instant construction works.

According to the above facts, the construction contract between the plaintiff and the defendant on March 15, 2006 (the construction amount of KRW 3,167,879,00) is about 1,2 parts out of the three parts of the creation project of this case, and the plaintiff calculated the construction amount of KRW 1,590,435,300 among the three parts of the creation project of this case, and reflecting this, it is reasonable to view that the plaintiff and the defendant entered into a subcontract (revision) under which the plaintiff and the defendant increase the construction amount of KRW 4,985,450,00 on November 1, 2006 to KRW 4,985,450,000. Meanwhile, the plaintiff and the defendant agreed on October 2, 2006 on the construction contract of this case and until it is terminated.

3) Sub-decisions

Therefore, the plaintiff's claim under the premise that the defendant unilaterally renounced the construction work of this case around September 2006 or around March 2007 is without merit to further examine.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.