[1] If there is a defect in a newly constructed building by the contractor, whether the contractor should recognize the consolation money (affirmative with qualification)

[2] Where the contractor claims damages in lieu of defect repair due to defects in the completed object, the scope of the contractor's claim for damages and the contractor's claim for the simultaneous performance relationship

[1] In general, in a contract for new construction of a building, where a contractor has a defect in a newly built building, it is reasonable to deem that the mental suffering which the contractor received is recovered from the compensation for the defect or the compensation for the defect to be paid in lieu of the defect repair. If the contractor suffered an irrecoverable mental suffering due to the repair of the defect or the compensation for the damage, it can be recognized as compensation for mental suffering only where the contractor knew or could have known such a circumstance.

[2] Where a contractor claims compensation in lieu of the repair of defects due to defects in an object completed, the contractor may refuse the performance of his/her obligation only for the amount of compensation corresponding to the amount of compensation until the contractor has provided the obligation to compensate for damages, and the amount of the remainder may not be refused. Therefore, the contractor's claim for compensation for damages and the amount of the construction payment related to the simultaneous performance of the contractor's claim is limited to the above amount of compensation and the amount equivalent to the amount of the compensation for the remainder of the construction payment, and the remainder of the construction payment claim cannot

[1] Articles 393 and 667(2) of the Civil Act / [2] Articles 536 and 667(2) of the Civil Act

[1] Supreme Court Decision 91Da25628 delivered on December 10, 1991 (Gong1992, 485), Supreme Court Decision 93Da1915 delivered on November 9, 1993 (Gong1994Sang, 74), Supreme Court Decision 93Da5979 delivered on December 13, 1994 (Gong195Sang, 472) / [2] Supreme Court Decision 90Da230 delivered on May 22, 1990 (Gong190, 1353) Supreme Court Decision 91Da3056 delivered on December 10, 191 (Gong192, 490), Supreme Court Decision 94Da19651 delivered on October 14, 1994 (Gong1965 decided October 16, 194)

Incheon Industrial Co., Ltd. (Attorneys Yu Sung-sung et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Attorney Song Man-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 94Na7319 delivered on February 8, 1995

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

The First Ground for Appeal

According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment after compiling the evidence, and determined that the construction period of this case was extended at least on November 30, 191 by the defendants' notification from January 1, 1992 to October 5, 191, and thereafter, the defendants did not expressly consent to the extension of the period until December 31 of the same year when the plaintiff requested extension, but the construction was delayed due to the reasons not attributable to the defendants or the plaintiff's responsibility during that period or delayed. Thus, the plaintiff's request for extension was just and the defendants had a duty to respond to the request for extension. Thus, it cannot be deemed that the construction was delayed during that period, and eventually, the court below determined that only compensation for delay for 21 days from January 1, 1992 to the date of completion of the construction of this case should be deducted from the construction price of this case.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law by misunderstanding the legal principles as to the contractor's duty and the cause attributable to the contractor in the construction contract, and in violation of the rules of evidence or the lack of reason. The arguments are without merit.

The Second Ground of Appeal

In light of the records, it is reasonable that the court below acknowledged the fact that the ceiling height in its decision was lower than the design map through consultation with the plaintiff and the defendants, and that the plaintiff and the defendants decided to have different standards from the design drawing at the time of the contract, and there is no error of incomplete deliberation or violation of the rules of evidence as pointed out in the arguments. There is no reason to discuss.

As to the ground of appeal No. 3

Unless otherwise stipulated by the parties in the construction contract, the contractor shall complete the building and deliver it to the contractor. Furthermore, the contractor shall not be obliged to remove or remove the equipment, etc. installed or accumulated in the site owned by another person in the vicinity of the site while executing the construction work for the contractor and to restore the site to its original state. In addition, in the contract for construction, the contractor shall not be liable for the damages incurred by the contractor to a third party in relation to the relevant date unless there is gross negligence on the contract or instruction. However, the contractor shall be liable for the damages incurred by the contractor or his employee to the third party only when the contractor specifically directs and supervises the progress and method of the work (Article 757 and Article 756 of the Civil Act).

Therefore, in the instant case, if the Plaintiff installed concrete posts on the adjoining site in order to prevent the collapse of the adjoining site in the course of the construction of the ground-breaking work, such removal obligation or liability for damages therefrom cannot be deemed to exist in the contractor, barring special circumstances. The Defendants, the contractor, are bound to the instant building after the construction of the building. The Defendants, the owner of the building, would infringe on the ownership of the adjoining site, and the Defendants, the owner of the building, bears the duty of removal in relation to the owner of the adjoining site. We cannot accept the allegation that the Defendants are obligated to remove.

There is no error of misapprehending the legal principles as to the owner's liability in the construction work in the judgment below.

As to the fourth ground for appeal

In light of the records, it is acceptable that the court below did not accept the defendants' assertion that the defendants suffered damages equivalent to monthly rent, etc. for the period necessary to repair the defects and non-construction parts of the building of this case on its grounds as stated in its reasoning, and there is no error of law that did not recognize the defendants' damages in violation of the experience and logical rules, such as the theory of lawsuit. The argument is without merit.

As to the fifth ground for appeal

In general, if there is a defect in a new building constructed by a contractor in a contract for new construction of a building, it is reasonable to deem that the mental suffering that the contractor suffered from the defect is recovered due to the repair of the defect or the compensation for the defect in lieu of the defect repair. If the contractor suffered from an irrecoverable mental suffering due to special circumstances and the contractor knew or could have known such circumstances (see Supreme Court Decision 93Da1915 delivered on Nov. 9, 1993). It is reasonable to recognize consolation money for mental suffering only if the contractor knew or could have known such circumstances (see Supreme Court Decision 93Da19115 delivered on Nov. 9, 193). Thus, even if the concrete strength of the building of this case is deficient, construction defects are defective, and the contractor suffered from mental suffering due to the non-construction, it is hard to view that the defendants suffered from the above mental suffering or damage in lieu of the material to determine that the concrete strength of the building did not affect the safety of the building without structural problems.

In the same purport, the court below rejected the defendants' assertion of offset against the consolation money portion is just, and there is no violation of the rules of evidence such as the theory of lawsuit. The arguments are without merit.

The grounds of appeal No. 6 (the grounds of appeal No. 7)

Where a contractor claims compensation in lieu of the repair of a defect due to a defect in the object completed, the contractor may refuse the performance of his/her obligation only for the amount of remuneration corresponding to the amount of the compensation until the contractor provides the performance of his/her obligation in relation to the claim for compensation, and the amount of the remainder may not be refused. Therefore, the contractor's claim for compensation for damages and the amount of the compensation shall be limited to the amount of the above compensation and the amount of the compensation equal to the amount of the compensation for the remainder of the construction work, and the remainder of the compensation for the construction shall not be deemed to be in a concurrent performance relationship (see Supreme Court Decisions 94Da2611 delivered on October 11, 1994; 91Da33056 delivered on December 10, 199, 90Meu230 delivered on May 22, 199).

The court below is just in ordering the payment of compensation for delay from the day after the date of completion inspection as to the remainder other than the compensation claim for damages in lieu of the defect repair of the defendants in accordance with the above legal principles, and there is no error of law by misunderstanding the legal principles as to the time of payment of compensation in the contract for work as in the theory of lawsuit. The Supreme Court Decision 88Meu18788 Decided December 12, 1989 cited in the theory of lawsuit cannot be said to be appropriate for the use in this case.

In addition, the argument that the Defendants paid the remainder of the construction work of this case to the Plaintiff after the completion of the construction work and the performance of the repair of defects is a new argument in party members who did not reach the original trial, and there is no evidence to acknowledge it. The argument is without merit.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)