2012Na7008 Construction Price

A Stock Company

Seoul

Representative Director Kim Il-l

Law Firm Democratic LLC, Counsel for defendant-appellant

Attorney Lee Dong-soo

B Stock Company

Daegu

Silsan-si in place of service

Representative In-house Director KimB1

Attorney Lee Jae-il, Counsel for the plaintiff-appellant

C1 Stock Company

Daegu

3. Representative Director C3

Law Firm Han-chul et al., Counsel for the plaintiff-appellant

Attorney Lee J-jin

Daegu District Court Decision 201Gahap14040 Decided November 23, 2012

April 2, 2014

May 21, 2014

1. Revocation of the first instance judgment.

2. The plaintiff's claim against the primary defendant and the conjunctive defendant are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A. For the primary defendant: the primary defendant shall pay to the plaintiff 33,681,625 won with 6% interest per annum from May 4, 2010 to the service date of the original copy of the payment order of this case, and 20% interest per annum from the next day to the day of complete payment.

B. As to the conjunctive defendant: the conjunctive defendant shall pay to the plaintiff 33,681,625 won and the amount calculated by the rate of 6% per annum from December 31, 2009 to the delivery date of a copy of the claim and cause modification application of this case, and 20% per annum from the next day to the date of complete payment.2. The purport of appeal is to pay to the plaintiff 33,681,625 won per annum.

Of the judgment of the first instance, the part against the conjunctive defendant shall be revoked, and the appeal against the conjunctive defendant shall be dismissed.

1. Basic facts

A. The relationship between the parties

1) The primary defendant is a company that has awarded a contract to the company C2 (hereinafter referred to as the "C2"), which is a company that has awarded a contract to the company 1-1 unit in Masan-dong 1-1 unit in Masan-si to the company for construction of new apartment (hereinafter referred to as the "new apartment construction of this case"). The preliminary defendant is a company that has acquired all the obligations of C2 related to the new apartment construction of this case by combining C2, and the plaintiff is a company that has been awarded a subcontract from C2 to the construction of new apartment of this case.

2) From November 7, 2006, C2 entered the rehabilitation procedure after the Daegu District Court 2009 Ma29 and 30 on June 11, 2009 when performing the new construction of the instant apartment, C2 entered the rehabilitation procedure. On December 10, 2010, C2 completed the rehabilitation procedure after receiving the authorization for the rehabilitation plan by acquiring the third party’s acquisition on or around April 29, 201. D merged C2 around June 29, 201 and changed the name of the conjunctive defendant (hereinafter referred to as “the preliminary defendant”).

B. Conclusion of the original contract and the subcontract of this case

1) On November 7, 2006, the primary defendant agreed on the contract amounting to 50,653,977,000 won for the new construction of the instant apartment, and the construction period from November 8, 2006 to July 31, 2009 for liquidated damages, and 1/1,000 of the contract amount per day for liquidated damages (Provided, That the total amount shall not exceed 3/100 of the contract amount) for the new construction of the instant apartment (hereinafter referred to as the “original contract”).

2) Preliminary Defendant: (a) on October 2008, the contract amount of the subcontracted construction of this case to the Plaintiff was KRW 2,081,738,375 (payment in cash within 60 days from the date of receipt of the object price); and (b) on October 20, 2008 to July 31, 2009, the period of construction was determined and subcontracted (hereinafter “the subcontract of this case”).

(c) Preparation of a direct payment agreement and a written agreement for rehabilitation procedures of C2;

1) The subcontractors of the instant apartment construction project, including the Plaintiff, who were found to fall short of the financing crisis at the end of 2008, discontinued the construction due to C2’s financial reasons.

2) Accordingly, around the beginning of March 2009, the primary defendant, the contractor C2, the D Bank, the Loan Bank, and E Co., Ltd., the representative of the subcontractors (hereinafter referred to as the “E”) made an agreement for the resumption of the New Apartment Construction (hereinafter referred to as the “Agreement on the New Apartment Construction”) which is the agreement for the resumption of the New Apartment Construction (hereinafter referred to as the “Agreement on June 22, 2009”). The main contents of the instant business agreement relating to the instant case are as follows.

2. Despite the C2 rehabilitation procedures, the project participants consulted on the method that can complete the project by the end of September 2009, and they agreed that the contractor C2 and the contractor B and the subcontractor, a subsidiary company thereof, shall prepare an agreement on the direct payment of the subcontract price and the corresponding construction cost shall also be paid to the subcontractor B.Article 3 (1) direct payment of the subcontract price, and C2 and the subcontractor shall enter into an agreement on the direct payment of the subcontract price in the form described in the attached Form 3 (Evidence A 2).The agent E of the subcontractor related to the direct payment of the subcontract price shall comply with the following matters, and shall comply with all sewage companies related to the project. To this end, E shall submit the agreement on the direct payment of the subcontract price to the subcontractor by the end of 90 days before the completion of the rehabilitation procedure, with the agreement on the additional payment of the subcontract price set forth in the attached Form 1(A)(5) and the agreement on the completion of the rehabilitation procedure by the end of 20 days before the completion of the rehabilitation procedure.

2에 기재된 내용과 양식으로 작성된 책임준공보증서를 D은행과 B에 제출하기로 한다 . 각하수급업체는 책임준공의무를 이행하지 못하는 경우 E이 제출한 책임준공보증서에 준하여 책임을 지고 , 추가 대출 중 하도급 및 자재대금 지급분에 한하여 보증을 하며 , 2009 .9 . 말까지 책임준공이 완료되면 보증의 효력은 해지되는 조건으로 보증서를 제출하기로 하되 , 대기업 등 보증서 또는 보증에 따른 이사회 회의록 제출을 하지 못하는 업체에 대하여는 하수급업체들간에 협의하여 정한다 . 또한 미지급 공사대금 또는 자재대금이 있는 경우에는 위의 손해배상과 상계하는 것에 대하여 동의한다 .( 다 ) 각 하수급업체 등은 2009 . 2 . 말을 기준으로 한 미지급공사비 및 자재대금 내역을추가대출약정서 체결일 이전에 D은행과 B에 제출하여야 한다 .( 라 ) 각 하수급업체 등은 하도급금액을 직접 지급받을 사유가 발생하는 경우 , D은행 또는 B의 요청에 따라 하도급대금의 직접지급을 요청하는 공문을 B에 송부하기로 한다 . 어느 하수급업체 등이 위 공문의 발송을 적시에 하지 아니하여 하도급대금이 직접 지급되지 아니한 경우 그로 인한 손해는 해당 하수급업체 등에 귀속된다 .제4조 하도급공사비 및 자재 대금의 지급방법제1항 지급시기하수급업체 등에 대한 하도급공사비 및 자재대금은 각 하수급업체 등이 C2와 체결한하도급계약 및 납품계약서에 정한 조건에 따라 지급하기로 한다 .제2항 재원하수급업체 등에 대한 하도급공사비 및 자재대금은 본건사업과 관련하여 입주잔금 및추가대출약정에 따른 대출금을 재원으로 한다 .제7조 기타 규정제8항 기타 사항본 사업의 준공일정 변경 ( 2009 . 7 . →→ 2009 . 9 . ) 에 따른 공사지체상금은 B과 C2 간의공사도급계약서 제26조에 준하여 C2가 지급하기로 한다 .

3) On March 17, 2009, the Plaintiff prepared a letter of undertaking (attached Form 1 and No. 5 of the instant business agreement) that acknowledges that the instant business agreement will have the effect on the Plaintiff, and submitted it to the primary Defendant and D Bank. Around that time, the Plaintiff and the Defendants specified the contents of the instant subcontract and prepared a “Agreement on Direct Payment of Subcontract Price” (attached Form 3, subparagraph 2 of the instant business agreement, hereinafter referred to as the “instant agreement”) with the following contents, and obtained the fixed date for the instant agreement on April 17, 2009.

The terms and conditions of a subcontract: contract amount of 2,081, 738, 375 won, and period of construction from October 20, 2008 to July 31, 2009; I agree between the ordering person (the primary defendant), contractor (the primary defendant), and subcontractor (the plaintiff) to pay the subcontract price directly to the subcontractor pursuant to Article 35(2) of the Framework Act on the Construction Industry. 2. The contractor shall request the subcontractor to pay the subcontract price directly to the subcontractor pursuant to Article 35(2) of the Framework Act on the Construction Industry.

D. Alteration of the instant subcontract and payment of the construction cost

1) After that, between the plaintiff and the preliminary defendant on April 14, 2009 (the first change) and August 17, 2009 (the second change), the plaintiff changed the construction amount of the subcontract of this case into KRW 333,681,625, more than the original "2,415,420,000, more than the original "2,081,738,375," and the construction period from "from July 31, 2009 to " October 31, 2009," respectively, and entered into a subcontract alteration agreement (the "the alteration agreement of this case") with the payment in cash once a month within 60 days from the date of receipt of the object.

2) Around October 30, 209, the Plaintiff completed all the instant subcontract and the instant modified contract (the new apartment construction works of this case were completed on or around November 7, 2009). However, only KRW 2,081,738,375, which is the initial contract amount of the instant subcontract, was paid by the Defendants. The Plaintiff did not receive the instant increased payment from the preliminary respondent as the monthly progress payment for the construction works of this case, which included the amount of KRW 333,681,625, which was increased in the instant modified contract, (hereinafter “the instant increased price”). The Plaintiff did not receive the increased payment for the completed payment for the construction works of this case on September 30, 2009, including the amount of KRW 482,220,000, KRW 192,200,617, Oct. 30, 2009.

3) Accordingly, on April 26, 2010, the Plaintiff sent a peremptory notice (Evidence A 9) stating that “The payment of the remainder amount of the subcontracted project of this case to the primary defendant by May 3, 2010,” and the peremptory notice reached the primary defendant on April 28, 2010.

E. Legislation applicable to the instant case

1) From 2008 to 2008, the Plaintiff engaged in a construction business is not a small and medium entrepreneur as defined in the Framework Act on Small and Medium Enterprises with more than 35 billion won in capital, 10 billion won in total, 50 billion won in annual sales, 1200 won in full-time workers, and 1200 or more in its Enforcement Decree.

2) Therefore, the Act applicable to this case is not a "Fair Transactions in Subcontracting Act" (hereinafter referred to as the "subcontract Act"), but the former Framework Act on the Construction Industry (wholly amended on May 17, 2007 and enforced on January 1, 2008, hereinafter referred to as the "former Framework Act on Construction Industry") which was enforced at the time of entering into the subcontract of this case, and the relevant provisions are as follows.

1. Article 35 (Direct Payment of Subcontract Price) (1) of the former Framework Act on the Construction Industry (amended by Act No. 8477, May 17, 2007; Act No. 8477); (2) The contractor shall pay the subcontractor the subcontract price in cash if he/she receives the completion payment for a contracted construction work; and the subcontractor if he/she receives the progress payment, he/she shall pay the subcontractor the amount equivalent to the portion executed by the subcontractor in cash within 15 days from the date he/she receives the payment, respectively:

Sewage Grade 10

3. Where a contractor is unable to pay the subcontract price directly to the ordering person due to the suspension of payment, bankruptcy or other causes similar thereto, or the cancellation of the registration of construction business, etc., the subcontractor shall be deemed to have terminated within the scope of the subcontractor's obligation to pay the subcontract price and the obligation to pay the subcontractor of the contractor of the subcontract price of the subcontractor of the date set forth in paragraph (2) 3.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 16 (Unsatisfy other indications)

chapter 1 to 15, Eul, or any part of the evidence of heading 1 to 15, 15, 19.

Descriptions 5, 9 and 6-2, each part of Gap evidence 5, 6-2 which is not believed below

(other) The purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

1) The Plaintiff and the Defendants agreed to pay directly to the Plaintiff, the primary Defendant, the ordering person, to the Plaintiff, the subcontractor, by preparing a letter of undertaking under the instant business agreement and the instant agreement, up to the date of the instant subcontract and the subsequent increase in the construction cost. As such, the primary Defendant shall pay the price for the instant increase to the Plaintiff.

2) If the primary defendant does not have the obligation to pay the price for the increase in this case, the primary defendant, who is the principal contractor of the contract for the change in this case, is obligated to pay the price for the increase in this case to the plaintiff.

(b) The primary defendant;

1) The construction price agreed to be paid directly by the primary Defendant to the Plaintiff is limited to the original contract price in the instant subcontract agreement, and the increased price is not included in the content of the agreement. Therefore, the primary Defendant is not obliged to pay the increased price to the Plaintiff.

2) Even if the primary defendant is obligated to pay the subcontract price directly to the primary defendant under the former Framework Act on the Construction Industry, the obligation to pay the unpaid construction price is merely 2,934,848,60 won. The damage liability of the primary defendant for the primary defendant due to non-performance of obligation, such as the site of the primary defendant, is 6,956,235,296 won [1,142,213,690 won (1,519,619, 310 won for delay from August 1, 2009 to September 30, 2009) + 30,500 won for the primary defendant's liability for damages + 30,619,619,310 won for the above conjunctive defendant's liability for damages + 250,600 won for damages arising from non-performance of obligation to the primary defendant's property + 30,5000 won for damages arising from non-performance of obligation

(c) Preliminary Defendant

1) As the primary Defendant agreed to pay directly to the Plaintiff the instant increase price in accordance with the letter of undertaking under the instant business agreement and the instant agreement, the primary Defendant, who is the ordering person, directly pays the instant increase price to the Plaintiff, who is the subcontractor.

2) Unless otherwise, the conjunctive Defendant, the primary contractor, delayed payment of each payment for the completed portion on September 30, 2009 and October 31, 2009 at least twice. On or around April 2010, the Plaintiff requested the primary Defendant to pay the increased amount, the primary Defendant could not pay the subcontract amount while the rehabilitation procedure is in progress.

3) Therefore, the primary Defendant, under Article 35(2)1 of the former Framework Act on the Construction Industry (i.e., direct payment of the subcontract price) and Article 35(2)2 of the former Framework Act on the Construction Industry (i.e., delay in the payment of the subcontract price on at least two occasions), and Article 35(2)3 (ii) of the same Act (i.e., suspension of payment of the contractor), directly pays the increased price to the Plaintiff. In such a case, the primary Defendant’s obligation to pay the subcontract price (the instant increased price) to the primary Plaintiff was extinguished

4) As seen above, the claim against the original contractor by light that the ordering person bears the obligation to pay the subcontract price directly to the subcontractor cannot be deducted or offset.

6. 1: (1) as of October 31, 209, 5; (2) as of November 9, 2009, 10, 31 to 30. 6. 14; (3) as of March 3, 201; (3) as of March 3, 201; (4) as of March 3, 201, 1 to 30. 14; (6) as of March 1, 206; (4) as of March 3, 201, 1 to 30; (5); (6) as of March 4, 206; (3); (4) as of March 3, 201; (6) as of March 1, 204; (6) as of 30; and (3) as of March 3, 206, as of 196; and (4) as of March 3, 2018; and (4) as of this case’s additional construction consideration.

3. Judgment on the claim against the primary defendant

The plaintiff is merely the fact that the main defendant agreed to pay the amount of increase in the subcontract price of this case directly to the plaintiff in addition to the construction price of this case. Thus, the plaintiff asserted the "the occurrence of the obligation to pay the amount of direct payment under Article 35 (2) 2 of the former Framework Act on the Construction Industry" as the main cause of preliminary claim against the main defendant, but withdrawn it by the plaintiff's statement in the preparatory document as of November 8, 2012). We examine whether the above direct payment agreement was reached in this case.

A. Relevant legal principles

If the authenticity of a disposal document is recognized, the court shall, in principle, recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable reflective evidence that denies the contents of the statement. In the event that there is any difference between the parties regarding the interpretation of the contract and the interpretation of the parties expressed in the disposal document is at issue, the court shall reasonably interpret the content in accordance with logical and empirical rules by comprehensively taking into account the use of the text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decision 2004Da6065, May 27, 200

B. Whether there was a direct payment agreement on the instant increased price

1) First, it is difficult to believe that some of the descriptions of Gap evidence Nos. 5, 9, and 6-2, as shown above, stated the plaintiff or the preliminary defendant's unilateral assertion that the primary defendant demanded the direct payment obligation in the previous case, and that they are, in light of the following facts acknowledged:

2) On the other hand, the instant business agreement was concluded for the purpose of completing the remaining construction by the primary Defendant’s direct payment of the subcontract price necessary for the completion of the construction work to the subcontractors due to the financial shortage of the primary Defendant (C2). ② The main text of the instant business agreement was to consult with the contractor C2 and the subcontractor on the method of completion of the project until September 2009 despite the progress of the rehabilitation procedure under C2, and the contractor B and the subcontractor, who is the appurtenant contractor, agreed to prepare the agreement for the direct payment of subcontract price and to pay the corresponding construction price to the subcontractor B. Article 4(1) provides that “The increases in the subcontract price and the material cost to the subcontractor shall be paid according to the terms and conditions set forth in the subcontract and delivery contract.” In full view of the above admitted evidence and the purport of the instant agreement as stated in Section B and subparagraphs 2 through 14, the amount of the subcontract price to be paid to the subcontractor as a whole after the completion of the construction work, and the purport of the agreement as stated in Section 3.

3) However, in light of the relevant legal principles as seen earlier, it is insufficient to recognize that the Defendant agreed to directly pay the Plaintiff the increased construction price (the increased construction price) in addition to the construction price stated in the instant agreement, and there is no other evidence to acknowledge the following circumstances, which can be known in full view of the purport of the entire pleadings.

In the instant business agreement, "A contractor C2 and a contractor B and a subcontractor of the ancillary construction business agree to pay the subcontract price directly to the sewage supplier B". Article 3 (1) of the Maritime Affairs and Trade Act provides that "B, C2 and the subcontractor shall enter into a direct payment agreement for subcontract price in the form specified in attached Table 3 (Evidence 2)". Article 3 (3) of the same Act provides that "each subcontractor shall guarantee only the subcontract price and material price for the additional loan. It shall submit the details of the unpaid construction cost and material price as of February 2, 2009 to the D bank and B before the date of conclusion of the additional loan agreement, and the contract price for the additional construction business shall be paid directly to the D bank and B, and where a cause for the direct payment of the subcontract price arises, it shall be delivered to the D Bank or B upon request of the D Bank and the subcontractor, and it shall be reverted to each of the above public contractor for the direct payment of the subcontract price."

Pursuant to Q Q, the instant agreement signed by the Plaintiff with the Defendants around March 2009 stipulated that “The terms of the contract: the contract amount: KRW 2,081,738,375, and the subcontract price corresponding to the portion executed by the subcontractor in the said subcontract shall be directly paid by the ordering person, contractor, and subcontractor pursuant to the provisions of Article 35(2) of the Framework Act on the Construction Industry,” and that “The contract amount subject to the direct payment agreement shall be explicitly specified between the parties.”

The guarantee of the subcontract price increased to a bank is shipped out by some subcontractors, but the primary defendant directly paid the increased subcontract price to some subcontractors, which seems to be due to the fact that the subcontractor or the primary defendant submitted in advance a supply contract to the primary defendant even if the subcontractor or the primary defendant changed the contract, and obtained the consent of the primary defendant (in other words, there seems to have been an additional agreement on it).

D. On October 31, 2009, the Plaintiff or the conjunctive Defendant requested the primary Defendant to pay the increased price of the instant case after the completion of the construction work under the instant modified contract, and the primary Defendant directly requested the primary Defendant to pay the increased price on April 2010.

E. As the subcontract is a contract between the original contractor and the subcontractor who is obligated to complete the contract as the original contract price, the subcontract price may be greater than the original contract price. However, if the ordering person agrees to assume the obligation to pay the increased subcontract price without prior notice or consent, it is an exceptional day.

4) Therefore, the subcontract consideration that the primary defendant agreed to pay directly to the plaintiff in accordance with the letter of undertaking under the instant business agreement and the written agreement of this case shall be limited to "2,081,738,375 won per original contract explicitly stated in the instant agreement, which is a disposal document."

C. Sub-decision

Therefore, the plaintiff's assertion against the main defendant on the premise that "the prime defendant agreed to pay the price of the subcontract of this case directly to the plaintiff in addition to the price of the subcontract of this case" is without merit (On the other hand, the existence and scope of the duty to pay the price of the construction to the main defendant under Article 35 (2) 2 of the former Framework Act on Construction Industry shall be judged on the existence and the scope of the duty to pay the price of the construction to the main defendant under Article 35 (3) of the former Framework Act on Construction Industry, but this is only a judgment on the conjunctive defendant's defense, and it is not a judgment on the plaintiff's claim against the main defendant, since the plaintiff did not make a claim against the main defendant under the above provision of the above Act.

A. Determination on the cause of the claim

According to the above facts, the conjunctive defendant is obligated to pay the increased price to the plaintiff, who is the subcontractor, as the subcontractor of the contract for the change of this case, unless there are special circumstances.

B. Judgment on the conjunctive defendant's assertion

In regard to this, the conjunctive defendant, in accordance with Article 35 (2) 2 and 3 of the former Framework Act on the Construction Industry (if the payment of the subcontract price has been delayed not less than twice) (in case of the suspension of payment of the contractor, etc.), the primary defendant, who is the ordering person, directly pays the increased price to the plaintiff, and in accordance with Article 35 (3) of the same Act, the primary defendant's obligation to pay the subcontract price has already been extinguished, and first, it is examined as to whether it falls under subparagraph 2 of the same Article.

1) Legal principles related to Article 35(2)2 of the former Framework Act on the Construction Industry

Upon receipt of a request for direct payment under Article 35(2) of the former Framework Act on the Construction Industry, the amount corresponding thereto is transferred to a subcontractor while maintaining the identity of the contractor’s claim for the construction cost against the project owner. The project owner may set up against the subcontractor on the grounds that he/she could set up against the contractor before the said request for direct payment (see, e.g., Supreme Court Decision 2009Da19574, Jun. 10, 2010). The scope of the contractor’s obligation to direct payment to the subcontractor is reasonable to interpret that the amount calculated by deducting the amount of the subcontractor’s subcontract portion from the subcontract price corresponding to the portion of the contractor’s performance from the subcontract price corresponding to the portion that the subcontractor has already paid to the contractor by the project owner to the contractor (see, e.g., Supreme Court Decision 2011Da2029, Apr. 28, 2011).

2) Whether the conjunctive defendant's obligation to pay the subcontract price for the plaintiff is extinguished

A) Facts of recognition

On June 11, 2009, Daegu District Court Decision 2009 Ma29 and 30 decided to commence rehabilitation procedures. On December 10, 2010, the rehabilitation procedures were completed by the third party acquisition decision and the rehabilitation procedure was completed on April 29, 201. On October 30, 2009, the plaintiff completed all the construction works stipulated in the subcontract of this case and the modified contract of this case. The plaintiff paid the conjunctive defendant the monthly completion payment (the progress payment shall be paid in cash once a month within 60 days from the date of receipt) of the contract including the increase in this case to the defendant, but the plaintiff did not directly receive the payment for the completed portion on September 30, 2009 : (the progress payment shall be paid in 482,200,000, and the progress payment shall be paid in advance to the defendant on October 16, 2009 ; and (3) the plaintiff shall be paid the advance payment on September 26, 2009>

B) Determination

(1) Examining the above facts in light of the relevant Acts and subordinate statutes and legal principles as seen earlier, at the time of April 28, 2010, the Plaintiff’s expression of intent requesting the direct payment of the increased subcontract price, which was the first contractor, had already been delayed on September 30, 2009 and October 30, 2009 (see, e.g., Supreme Court Decision 2009Da254838, Nov. 30, 2009; Supreme Court Decision 2009Da324, Nov. 30, 2009; Supreme Court Decision 200Da3254, Nov. 30, 2009; Supreme Court Decision 200Da3254, Nov. 30, 2009; Supreme Court Decision 200Da3254, Feb. 29, 2009). Thus, the Defendant, who was the first owner, had no obligation to pay the subcontract price to the Plaintiff under the former Enforcement Rule 25.

(2) As to this, the plaintiff argued that the preliminary defendant had not received progress payment corresponding to the price for the increase in this case from the primary defendant, and that there was no reason for direct payment under Article 35 (2) 2 of the former Framework Act on the Construction Industry (where the contractor has delayed payment of the price for subcontract under Article 34 (1) twice or more, the contractor shall not be required to pay the price for subcontract at least twice). However, according to the relevant Acts and subordinate statutes and the law as seen earlier, the above provision requires that "if the primary contractor delays payment to the subcontractor two or more times, the contractor shall be paid the price for subcontract," and it does not require that "the principal contractor shall be paid the price for subcontract corresponding to its part from the ordering person." (In light of the relevant legal principles as seen earlier, if the principal contractor has received progress payment from the ordering person, the portion is excluded within the scope of the obligation of direct payment to the subcontractor). The plaintiff's above assertion cannot be accepted.

(3) In addition, the plaintiff argues that the time when the obligation to pay the subcontract price to the subcontractor ceases to exist, is not "the time when the subcontractor makes a direct payment of the subcontract price to the subcontractor," but "the time when the subcontractor makes a direct payment of the subcontract price to the subcontractor." However, this argument is enforced from January 1, 2008 to November 24, 201, and it is in violation of Article 35 (3) of the former Framework Act on the Construction Industry (Act No. 847) (Article 847) (Article 35 (2)) (the contractor's obligation to pay the subcontract price to the subcontractor and the contractor's obligation to pay the subcontract price to the subcontractor, if the cause falling under any of the subparagraphs of paragraph (2) occurs, shall be deemed to have ceased to exist within the scope of 10th of the former Framework Act on the Construction Industry (Act No. 8477), and it shall not be deemed that the contractor and the subcontractor are paid the remainder of the subcontract price within the scope of 10th of the period of the subcontractor's obligation to pay the subcontract.

(4) On the other hand, the conjunctive defendant asserts that the plaintiff's intention to request the direct payment of the price in this case has already been extinguished at the latest on December 15, 2009 or on January 15, 2010, since the plaintiff's intention to request the direct payment of the price in this case has already been delivered to the primary defendant, but it is not sufficient to acknowledge the facts of the assertion merely by the descriptions of the evidence Nos. 22 and 23, and there is no other evidence to prove otherwise, the plaintiff's argument in the conjunctive defendant cannot be accepted.

3) Scope of termination of the obligation of the conjunctive defendant for the subcontract price

A) Facts of recognition

The contract amount of the original contract between the Defendants is KRW 50,653,977,00, and the construction period is from November 8, 2006 to July 31, 2009. The conjunctive Defendant completed the new construction of the instant apartment around November 7, 2009, and the fact that the Plaintiff’s request for direct payment of the increased price reaches the primary Defendant on April 28, 2010.

(4) As of April 28, 2010, the Defendant was obligated to pay 10.3 additional construction charges for delay to the Defendant for the total amount of KRW 30,00,000,000 for KRW 130,000,000,000 for KRW 20,000,000,000 for KRW 16.37,000,000,000,000 and KRW 16.36,000,000,000,000,000 and KRW 16.7,000,000,000,000 and KRW 16.3,000,000,000,000,000 were 16,000,000,0000,000,000 won and KRW 167,06,00,000,00.

B) Determination

(1) According to the above facts, when the plaintiff's direct payment request on April 28, 2010 reached the defendant, the conjunctive defendant, who is the original contractor, has at least KRW 5,750,752,631, and at least KRW 1,331,784,751, and KRW 351, which are total of KRW 7,081,787, KRW 360, KRW 370, KRW 286, KRW 370, KRW 286, KRW 308, KRW 106, KRW 370, KRW 289, KRW 308, KRW 106, KRW 288, KRW 106, KRW 37, KRW 308, KRW 106, KRW 308, KRW 108, KRW 289, KRW 308, KRW 108, KRW 108, KRW 308, KRW 208, KRW 208.

Moreover, there is no assertion or proof as to the existence of the increase in the price of the instant case that the primary defendant had not been paid to the primary defendant during the payment of the construction price, and thus, the primary defendant is obligated to directly pay to the plaintiff the remainder (as of April 28, 2010, and the part concerning the payment of the construction price to the primary defendant who had not been paid to the primary defendant cannot be asserted against the plaintiff, unless there are any special circumstances) 3,105,056,723 won within the limit of 33,681,625 won, and delay damages therefor. Accordingly, the obligation to pay the increased price of the instant case to the primary defendant to the plaintiff was extinguished on April 28, 2010 pursuant to Article 35(3) of the former Framework Act on the Construction Industry.

(2) On the other hand, the primary defendant asserts that, in addition to the above part, the additional amount of KRW 1,622,594,380 for the delayed payment from October 1, 2009 to November 9, 2009 (3/1,000 of the daily payment amount) and ② the damages of KRW 1,356,913,28 for the primary defendant additionally borne by the primary defendant (1,057,106,613 for the delayed payment and occupancy subsidies + interest on the loan of the project + KRW 220,553,423 for the additional expenses for supervision + KRW 37,602,352 for the additional expenses for the sale in lots + KRW 41,650 for the additional fees for the guarantee of KRW 41,650 for the sale in lots) and the additional amount of KRW 1,356,380 for the defendant's damages.

Therefore, the defendants' total sum of liquidated damages in the original contract of this case shall not exceed 3/100 of the contract amount. The agreement of this case also provides that the defendants shall pay liquidated damages in accordance with Article 26 of the original contract of this case among the defendants. The facts that there are no different provisions regarding liquidated damages are stated in the above, and there is no assertion or evidence as to the existence of different provisions concerning liquidated damages among the defendants. Thus, it is reasonable to view that the conjunctive defendant still bears the duty to pay liquidated damages within the limit of 3/100 of the contract amount.

Therefore, on different premises, the Defendant’s claim as to KRW 1,622,594,380 for additional delay penalty as to KRW 1,622,59,380 cannot be accepted without further review, and as long as the Defendant’s claim as to KRW 1,356,913,28 for additional delay penalty is not accepted, even if the Defendant’s claim as to KRW 1,356,913,28 for the above damages is assumed to be well-grounded, there is no change in the circumstance that the claim as to the Defendant’s primary claim against the Defendant as to KRW 2,356,913,28 for additional delay penalty after set-off as of April 28, 2010 remains in excess of the Plaintiff’s claim amount (as seen above, the primary Defendant’s claim as to KRW 3,550,568,218, which was after the Plaintiff’s request for direct payment from May 19, 2010 to March 3, 2019).

C. Sub-decision

Therefore, the obligation to pay the increased price to the plaintiff of the conjunctive defendant to the plaintiff of this case was terminated on or around April 28, 2010 pursuant to Article 35 (2) 2 and (3) of the former Construction Industry Basic Act. Thus, the conjunctive defendant's assertion pointing this out is with merit, and the plaintiff's assertion against the conjunctive defendant is without merit.

5. Conclusion

Therefore, the plaintiff's claim against the main defendant and the conjunctive defendant are all dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the court of first instance accepted the appeal by the conjunctive defendant and dismissed all the plaintiff's claim against the main defendant and the conjunctive defendant. It is so decided as per Disposition.

Gangwon-do (Presiding Judge)

Freeboard Kim

The grandchildren Hospital; and