2014Da60446 Construction Price, etc.

A Stock Company

B The Land Partition Adjustment Association in the District

Gwangju High Court Decision 2013Na2039 Decided July 18, 2014

June 24, 2015

Of the judgment below, the part on the claim for rise reflecting price fluctuation in the progress payment is reversed, and that part of the case is remanded to the Gwangju High Court. The remaining appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the claim for additional construction cost

The lower court determined that the lawsuit on the part of the instant lawsuit that the Plaintiff claimed payment of KRW 250,00,000 for the additional construction cost, alleging that the Plaintiff had incurred additional construction works other than those stipulated in the instant contract with the Defendant, was unlawful, on the ground that the Plaintiff and the Defendant agreed to bring an action against the Defendant regarding the second progress payment that the Plaintiff would receive from the Defendant, and that the said payment for the second progress includes the additional construction cost claimed by the Plaintiff, and that the said payment for the second progress includes the additional construction cost, the said part

Examining the record, the above determination by the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or of misapprehending the legal principles on the interpretation of legal acts and the interpretation of the Fair Transactions in Subcontracting Act

2. The lower court, based on its stated reasoning, determined that it is difficult to recognize that the Plaintiff and the Defendant agreed to separately pay an amount equivalent to the increased portion reflecting the price fluctuation in the said additional construction cost, and did not accept the Plaintiff’s claim seeking payment. Examining the record, the lower court’s determination and conclusion dismissing the Plaintiff’s claim on this part is justifiable, and there was no violation of the principle of free evaluation of evidence against logical and empirical rules.

3. As to the claim for rise portion reflecting price fluctuations in the progress payment

(1) At the time of conclusion of the instant contract, the purport of this part of the claim is that the Defendant separately agreed to pay the Plaintiff an amount equivalent to the increase in construction cost, reflecting the price fluctuation, in addition to the agreed construction cost, and the Plaintiff completed the construction work equivalent to KRW 1,648,137,90, which reflects the price fluctuation, according to the instant contract. As such, the Defendant is obliged to pay the Plaintiff KRW 1,648,137,90, which is the amount equivalent to the price fluctuation reflecting the price fluctuation in the construction cost corresponding to

(2) In light of the circumstances stated in its reasoning, the lower court dismissed the Plaintiff’s appeal on the ground that, although there is insufficient evidence to acknowledge the agreement of the Plaintiff’s assertion, the Plaintiff’s claim is groundless, the Plaintiff’s claim for payment of increase in construction cost corresponding to 86.52% of the judgment of the first instance, as long as only the Plaintiff appealed on the part of the claim seeking payment of increase in consideration of price fluctuations, the lower court did not render a judgment of dismissal disadvantageous to the Plaintiff, the appellant rather

(3) According to the reasoning of the lower judgment and the record, the Defendant entered into a contract with the relevant construction company on April 19, 2005 to contract for construction works for a land readjustment project with the relevant construction company (hereinafter referred to as the “FD Construction”), but the construction has been suspended at a cost of approximately 34% of the construction works in 207. ② On January 14, 2011, the Plaintiff entered into the contract of this case with the Plaintiff as to the remaining construction cost of KRW 5,038,00,00, which reflects the Plaintiff’s opinion on the increase in the construction cost as a result of the agreement between the Plaintiff and the Plaintiff. Article 20(1) of the contract, which reflects the Plaintiff’s opinion that reflected the change in the price of the items included in the calculation sheet in the remaining construction cost when 60 days or more has passed since the conclusion of the contract in 20 days or more, which reflects the Plaintiff’s opinion on the price increase in the construction cost of the instant construction work.

In light of the following circumstances, the agenda item of the Defendant’s board of directors is “a fixed case of an increase in the amount,” and the contents of the meeting are not to be determined after submitting a calculation statement on the premise that the amount is to be determined after submitting the calculation statement on the premise that the increase in the amount is to be paid. Article 20 of the contract under the contract of this case is stipulated in the purport that the contract of this case intends to cope with price fluctuations after concluding the contract. However, since the contract of this case is included in the content of the contract of this case, the Plaintiff and the Defendant perceived the provision as the basis provision on the payment agreement for the increase in the amount, it appears that the special agreement was not added separately to the increase in the amount due to price fluctuation, and the Plaintiff and the Defendant set the construction price based on the unit price for 202 year prior to 9 years prior to the conclusion of the contract of this case on the basis of the agreement of this case, it is reasonable to view that the Plaintiff and the Defendant were to have agreed on the price increase in the contract of this case based on the empirical rule.

On the other hand, in cases where the parties reserved a future agreement on certain matters in the course of concluding a contract between the parties, if there is an intention to detain the parties in the contract and if there is any method and standard that can specify the contents of the contract later in detail, the parties’ intent should be examined in light of the details of the contract, recognition, cooking, and empirical rule, etc. (see Supreme Court Decision 2004Da70420, Feb. 22, 2007). In this case, in light of various circumstances such as the background leading up to the agreement as above, the background leading up to the agreement between the Plaintiff and the Defendant in the instant case, the details of the discussion by the Defendant’s board of directors, and the contents of the agreement, the Plaintiff and the Defendant had an intention to assess the fair increase portion in accordance with the objective standard of inflation in cases where there is no mutual agreement on the increase portion in price fluctuation, and thus, if there is no agreement on the increase portion in price fluctuation reflecting the price fluctuation, it is reasonable to deem that the court can determine the increase portion in advance within reasonable scope.

(4) Nevertheless, the lower court dismissed the Plaintiff’s claim on this part on the grounds that there is insufficient evidence to acknowledge that there was an agreement between the Plaintiff and the Defendant to pay the rise amount reflecting price fluctuation. In so doing, it erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby affecting

4. Conclusion

Therefore, among the judgment below, the part of the claim for rise reflecting price fluctuation in the progress payment is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok