In cases where the payment of construction price is made in proportion to the base rate, the method of calculating the rate of the base rate;

If a contractor (or a subcontractor) pays the construction cost in accordance with the agreed terms and conditions of the contract amount, the contract amount to be paid by the contractor shall be calculated based on the agreed contract amount and shall be calculated by multiplying the agreed terms and conditions, and the ratio of the contract amount shall be determined by multiplying the terms and conditions of the work already completed and the details of the work already completed, and after determining the construction cost for the completed portion as of the time when the obligation to pay the contract amount arises, the construction cost for the completed portion and the construction cost to be incurred for the completion of the completed portion shall be assessed and determined by calculating the ratio of the already completed part of the total construction cost to the cost.

Articles 64, 665, and 673 of the Civil Act

Supreme Court Decision 91Da42630 delivered on March 31, 1992 (Gong1992, 1419) Supreme Court Decision 93Da25080 delivered on November 23, 1993 (Gong1994Sang, 179) Supreme Court Decision 94Da29300 delivered on June 9, 1995 (Gong195Ha, 2371)

Plaintiff (Counterclaim Defendant) (Attorney Yang Chang-soo, Counsel for the plaintiff-Counterclaim defendant-appellant)

Seoul High Court Decision 200

Busan High Court Decision 92Na14021, 14038 delivered on May 26, 1994

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) is reversed, and that part of the case is remanded to the Busan High Court.

The grounds of appeal as to the principal lawsuit and counterclaim shall also be examined.

According to the reasoning of the judgment below, the court below found that the defendant (Counterclaim Plaintiff; hereinafter the defendant) contracted the new construction of the defendant factory to the non-party Grand Construction Co., Ltd. with the amount of KRW 550 million (excluding value-added tax) and the above Grand Construction Co., Ltd. subcontracted the construction work of KRW 85 million (10%) to the plaintiff (Counterclaim defendant; hereinafter the plaintiff), and the plaintiff performed the above subcontracted work. The defendant was paid only KRW 20 million out of the subcontract work price due to the deterioration in the management of the above Grand Construction Co., Ltd., and the plaintiff was unable to receive the completion of the electrical construction due to the failure to pay the remainder of the subcontract work price on Oct. 18, 1990, the court below acknowledged that the construction work price of KRW 60 million,000,000,000 which was not paid by the plaintiff between the plaintiff and the non-party Grand Construction Co., Ltd., Ltd., was paid directly to the plaintiff among the appraisal work price of KRW 85 million.

If a contractor (or a subcontractor) pays the work price in accordance with the order of work, out of the agreed amount of the contract for the construction, as recognized by the court below, in the new construction of a factory, etc., the contract price to be paid by the contractor shall be determined by the method of multiplying the agreed contract price by its nature and ratio. The work price to be paid by the contractor shall be determined by the method of multiplying the agreed contract price by its nature and ratio. The nature and ratio of the contract price shall be determined by determining the details of the already completed work and the details of the work already completed part, and the construction cost to be incurred in completing the completed part at the time of the occurrence of the obligation to pay the contract price, after evaluating the construction cost for the completed part and the construction cost

However, according to the records, it is not clear that the plaintiff's subcontracted construction work is already completed and any part of the subcontracted construction work is not completed, and the appraisal result of the appraiser non-party 2 of the first instance court adopted by the court below does not mention any part of the agreed construction work or any part of the completed construction work. However, since the construction cost of the completed part is 67,190,000 won (per 10% value added tax) and such appraisal cannot be deemed to be an appraisal of the completed portion. Thus, the court below recognized that only the contract amount of 85,00,000 won is 67,190,000 won, or that the part of the completed construction work is 85,000 won, which was actually implemented by the above appraisal result, the court below did not err in the misapprehension of the legal principles or by failing to exhaust all necessary deliberation in calculating the construction cost due to the lack of sufficient deliberation or by violating the rules of evidence, which affected the conclusion of the court below's judgment.

Therefore, the part of the lower judgment against the Defendant regarding the principal lawsuit and counterclaim is reversed and remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)