Sub-registered Corporate Co., Ltd. and 4 others (Attorney Song-tae, Counsel for the plaintiff-appellant)

Yellow Seas (Attorney Song-soo et al., Counsel for the plaintiff-appellant)

Badrifical Rebuilding Housing Association

February 21, 2007

Seoul Southern District Court Decision 2005Gahap3602 Delivered on January 19, 2006

1. The appeal by the plaintiff yellow road interference and the defendant's appeal are dismissed, respectively.

2. The costs of appeal shall be borne by each person.

1. Purport of claim

The defendant jointly and severally with the joint defendant Construction Co., Ltd. in the first instance trial, paid 79,30,000,000 won to the plaintiff Lee Won-ju Co., Ltd., the 137,600,000,000 won to the plaintiff Lee Won-ju Co., Ltd., the plaintiff Lee Dong-nam Co., Ltd., the 236,00,000,000 won to the plaintiff Dong-nam Co., Ltd., and the 197,80,000,000 won to the plaintiff Shin Young-ju Co., Ltd., and the 118,00,000,000 won to each of them, and 5% per annum from January 18, 2005 to the last delivery date of a copy of the complaint in this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

A. The defendant's purport of appeal

In the judgment of the court of first instance, the part of the judgment against the plaintiff vice-name company, two capital stock companies, tin Han Civil Construction Co., Ltd., Dongnam IM Co., Ltd., and new Young-gu Co., Ltd. shall be revoked. The above plaintiffs' claims against the defendant

B. The purport of the appeal by the plaintiff sule interference

Of the judgment of the court of first instance, the part on the plaintiff Yellow Road shall be revoked. The defendant shall jointly and severally pay to the plaintiff Yellow Road Construction Co., Ltd. of the court of first instance 18,000,000 won and the interest calculated at the rate of 5% per annum from January 18, 2005 to the last delivery date of the copy of the complaint of this case, and 20% per annum from the next day to the date of full payment.

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged in full view of the following facts: Gap evidence 1-1-6, Gap evidence 2-1 through 5, Gap evidence 3-1-5, Gap evidence 6, 7, Gap evidence 13-1 through 6, Gap evidence 15, Eul evidence 6, and part of Gap evidence 10 and 16.

A. The defendant is a reconstruction association which obtained authorization for establishment from the head of Yangcheon-gu Seoul on January 15, 200 on the ground that each sectional owner of a wooden-fluoring house and a sub-gluoring house on five parcels, located in Yangcheon-gu Seoul, Yangcheon-gu, Seoul, and 47 sectional owners of the sub-glusing house, respectively.

B. On March 18, 200, the Defendant contracted the construction of an apartment under the name of the joint Defendant Defendant Construction Co., Ltd., Ltd., Co., Ltd., Ltd., Ltd., (hereinafter “Liwon Construction”), to remove the above wooden-fluoring house and the house for the construction of a new apartment (hereinafter “the construction of this case”). The Defendant invested the share in the land of each apartment house owned by each member of the said association, and the construction of the said apartment house provided one unit of apartment house to each member of the said association by constructing the said apartment house at its own effort and cost, and the remaining households of the apartment house agreed to sell it to the general public by all the members of the said association.

C. On August 1, 2003, the Construction Project was subcontracted in KRW 424,050,462 for the construction cost to Plaintiff 1, 203 (hereinafter “Plaintiff 1”) on August 1, 200, and thereafter increased the construction cost to KRW 452,142,817. On December 23, 2002, Plaintiff 2, Inc. (hereinafter “Plaintiff 2”) subcontracted in KRW 1,048,970,00 for KRW 1,50, KRW 30,00, KRW 200, KRW 300, KRW 200, KRW 300, KRW 205, KRW 1,000, KRW 15,000, KRW 205, Plaintiff 20, Plaintiff 1,000 (hereinafter “Plaintiff 2,00, KRW 98,000, KRW 9,000, KRW 98,000.

D. After that, on June 2004, when the plaintiffs failed to pay the subcontract price to the plaintiffs due to the shortage of financing, due to the suspension of each of the above subcontracts, the construction works of the court below was faced with the crisis where the construction works in this case will be interrupted. On July 1, 2004, the court below entrusted the non-party to the construction site manager of the construction site of this case with the authority to use and execute the anticipated revenues (the intermediate payment and balance of apartment, unsold apartment, unsold apartment, unsold apartment unit goods, and additional loans of association members) related to the construction of this case. Further, on July 8, 2004, the defendant promised to be responsible for and pay the subcontract price to the non-party, the court below prepared a written confirmation of the payment of the construction cost (the evidence 2-1 to 5) as follows:

In relation to ○ wooding, Haaking Construction (No. 19-1 et al. of the new month and five parcels), it is confirmed that the construction cost (out-of-the-counter, services, supply, etc.) unpaid at the present time should be paid according to the unpaid rate of total construction cost as of the end of each month at the time of receipt of import, such as the balance of occupancy by ordinary occupants after approval for use of the construction, disposal of goods in kind [3rd floor sale at apartment (90%) and 102, 1101, and 1108)], etc.

○ Group 1: Unoccupanted and unsold amount due to unsold portion shall be paid until the time of occupancy and sale.

○○ Group 2: On-site operation expenses, entrusted construction expenses, defect repair expenses, civil petition treatment expenses, design and supervision expenses shall be used voluntarily.

E. Under the aforementioned construction cost payment agreement, the above plaintiffs continued construction and completed the new construction work of 121 household apartment units around September 2004, and completed the completion inspection on September 7, 2004.

F. The Defendant paid the construction cost to the above Plaintiffs by December 31, 2004 in accordance with the contents of the above construction cost payment confirmation, but did not pay the construction cost on the ground that there was no profit from the sale of the above apartment. The construction cost to be paid by the above Plaintiffs as of January 17, 2005 is KRW 79,300,000, Plaintiff’s name company’s double-public works, KRW 137,000,000, Plaintiff’s construction work, KRW 80,600,000, and KRW 236,000,000,000, and Plaintiff’s New Young-gu case is KRW 197,80,000,000.

2. As to the claim filed by the Plaintiff for the following reasons: the Plaintiff’s name firm, the two master public affairs, the construction of tin, the South Asia-M, and the new territory.

A. According to the above facts, the defendant, as a contractor of the instant construction project, agreed to pay each subcontract cost to be paid directly by the above plaintiffs, who are subcontractors, by the defendant, as the contractor of the instant construction project. Thus, barring any special circumstances, the above plaintiffs are obligated to pay the above construction cost.

B. As to the defendant's argument

(1) The defendant asserts that the defendant is not liable for the construction cost incurred until July 8, 2004 or for the construction cost that the above plaintiffs agreed to additionally change between the above plaintiffs and the above plaintiffs' construction cost payment certificate. Thus, the defendant is liable for the unpaid construction cost incurred by July 8, 2004.

In light of all the circumstances, as seen earlier, the above construction cost payment certificate as stated in the construction cost payment certificate as "the construction cost unpaid at the present time" was stated. However, as seen above, in order for the above plaintiffs to suspend the construction work and guarantee the above plaintiffs to continue the construction work in this case, each of the above construction cost payment certificate was prepared with the above plaintiffs. ② The above plaintiffs continued the construction cost payment certificate after receiving the above construction cost payment certificate and completed the construction work in this case. ③ The defendant paid the above plaintiffs the construction cost without any objection by December 31, 2004 in accordance with the above construction cost payment certificate. Rather, it is difficult to view that the defendant agreed to hold the above construction cost payment certificate as "the construction cost payment was not made at the present time," and the defendant prepared the above construction cost payment certificate as "the construction cost payment was not made at the present time" as "the construction cost payment was not made at the present time. Thus, the defendant's assertion that the above construction cost payment was not made at the present time."

(2) The defendant asserts that the above construction cost is not obligated to pay the above construction cost only when the balance of the general tenant's occupancy, disposal of goods in kind, etc., occur, and the construction cost corresponding to the unsold apartment unit is not payable until the occupancy or sale of the apartment unit is made. The defendant asserts that from the revenue generated as above, the above-mentioned construction site operation cost, entrusted construction cost, defect repair cost, civil petition treatment cost, design and supervision cost of the instant construction site, and only the remaining amount is paid.

In the certificate of the payment of construction cost, the construction cost shall be paid to the "if there is any balance of occupancy and import of goods, etc. by ordinary occupants after approval for use of the construction work after the approval for use of the construction work," and the "amount due to the unsold occupancy and unsold portion, delayed payment until the time of the occupancy, sale," and the "on-site operation cost, entrusted construction cost, defect repair cost, civil petition treatment cost, design and supervision cost" are stated as follows.

However, in light of the above circumstances, such as the circumstance where the defendant prepared a written confirmation of the payment of the construction cost or that the defendant paid the construction cost to the above plaintiffs by December 31, 2004 without any objection, the meaning of the phrase that the construction cost shall be paid to the above plaintiffs on the condition that the defendant would not pay the construction cost in the future, rather than the fact that the defendant would not pay the construction cost if the payment is not made on the condition that the above income would occur in the future, the defendant would pay the construction cost to the above plaintiffs, i.e., the method of raising funds to pay the construction cost to the above plaintiffs by the future revenue. Thus, even if the defendant did not make such a revenue differently from the original expectation, the defendant would still bear the obligation to pay the construction price to the above plaintiffs.

In addition, the meaning of the phrase "undeveloped or unsold amount due to unsold in lots, delayed payment until the time of parcelling-out" is rather than that the occurrence of the obligation for the construction cost itself is deferred to the occupancy, until the time of parcelling-out, or that the obligation for the above construction cost is created on the condition of parcelling-out or parcelling-out, but it is merely the meaning of understanding that the above plaintiffs understand if the above plaintiffs fail to pay the construction cost by the time of moving-out or parcelling-out because some households after the completion of the above apartment house have not been occupied or unsold in lots

In addition, the phrase “voluntary use of the site operation cost, entrusted construction cost, defect repair cost, civil petition treatment cost, design and supervision cost” means that the above revenue is understood that the above Plaintiffs understand that the Defendant preferentially uses part of the revenue for essential expenses, such as the site operation cost of the instant construction project and the entrusted construction cost, and thereby, it is difficult to view that the Defendant’s obligation for the construction cost is reduced to the remainder after deducting the above site operation cost, etc.

Therefore, the defendant's above assertion is without merit.

(3) Finally, the defendant asserts that the above plaintiffs' expenses incurred in performing the non-construction portion due to the failure to perform or erroneous construction works as design drawings are KRW 148,29,560, and the defect repair expenses incurred due to defective construction works are KRW 441,454,037, and each of the above amounts must be deducted from the above construction cost claimed by the above plaintiffs.

However, as seen earlier, the Defendant contracted the instant construction to the Protection Complex Construction, and the Protection Complex Construction subcontracted part of the construction to the above Plaintiffs. As seen above, the Defendant’s agreement to pay the subcontract price directly to the above Plaintiffs cannot be deemed as a party to the instant construction contract, or as a result, the said Plaintiffs’ direct liability for defect repair or construction to the Defendant based on the said contract between the Defendant and the Protection Complex Construction, and there is no other evidence to acknowledge that the said Plaintiffs are liable to pay the said debt to the Defendant. Thus, the above assertion by the Defendant is without merit, without any need to further examine.

3. As to the plaintiff's claim for yellow road interference

A. (1) On July 8, 2004, Plaintiff Yellow-ro, first of all, asserts that the Defendant promised to pay the subcontract price for Plaintiff Young-gu, two-cost public works, tin Han-gu Construction, Dongnam-M and New Young-gu Construction, and that the Plaintiff Yellow-ro was promised to pay the above construction cost orally from the Defendant at the time each written confirmation of the payment of the construction cost was made. However, since the construction cost payment confirmation was not written, the Defendant is obligated to pay the Plaintiff Yellow-ro with KRW 118,00,000 for the subcontract price.

(2) In light of the fact that the Defendant, while preparing a written confirmation of the payment of construction cost as seen earlier, did not prepare it with the Plaintiff YY, or there is no evidence to deem that the Defendant paid even a part of the subcontracted construction cost to the said Plaintiff thereafter, the above Plaintiff cannot be trusted with some of the statements in Gap evidence Nos. 10, 16, and evidence Nos. 17-1 through 5, which correspond to the fact that the said Plaintiff was promised to pay the subcontracted construction cost by oral promise from the Defendant. The entries in Gap evidence Nos. 6, 11, and 12 are insufficient to acknowledge the above allegation, and there is no other evidence to support this, the above Plaintiff’s above assertion is without merit.

B. (1) The Plaintiff Yellow-ro has again KRW 118,00,000 for the subcontract price claim against the said Plaintiff, and since the current comprehensive construction is insolvent, the said Plaintiff asserts that, in order to compensate for the said claim for the construction cost, the comprehensive construction for the said construction for the Defendant is subrogated to exercise the claim for the construction cost on the part of the base height that the comprehensive construction for the Defendant had in accordance with the contract for the instant construction work, and sought payment of the said claim for the construction cost against the Defendant.

(2) As seen earlier, the contract for the instant construction project between the defendant and the general construction of the court below is based on the premise that the construction of the court below made an investment in the land in kind by the defendant and the comprehensive construction of the court below's own apartment at its own effort and cost, newly constructed an apartment unit to the members of the court below, and the remaining apartment units belong to the general construction of the court below and sold it to the general public, and that the construction price shall be recovered from the proceeds of the sale. According to the above agreement, among the newly constructed apartment unit construction of the court below, the construction of the court below is merely acquiring the ownership of the remaining apartment units except the household unit to be distributed to the above members of the court below, and the defendant is not obligated to pay the construction price to the court below. Thus, the above plaintiff's above assertion is without merit.

4. Conclusion

Therefore, the defendant is jointly and severally liable with the Construction of Nowon General for Construction for the plaintiff 79,30,000 won, 137,600,000 won, 80,000 won for the plaintiff YY, 236,000,000 won for the plaintiff YM, and 197,80,000 won for the plaintiff YM, 197,80,000 won for each of them, and 5% per annum under the Civil Act from January 18, 2005 to April 1, 2005, the last delivery date of a copy of the complaint of this case, and 20% interest per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment. Thus, the plaintiffs' claim against the defendant is justified, and the plaintiff YNM's appeal against the defendant is dismissed, and the judgment of the court of first instance and the judgment of first instance is dismissed.

Judges Kang Jong-ju (Presiding Judge) (Presiding Justice)