(영문) 서울중앙지방법원 2016.09.23 2016가합513000

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(영문) 서울중앙지방법원 2016.09.23 2016가합513000

보증채무금

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1. The Defendant’s KRW 52,309,812 as well as the Plaintiff’s annual rate of KRW 6% from May 6, 2015 to September 23, 2016.

Reasons

1. Basic facts

A. C Co., Ltd. (hereinafter referred to as “C”) was awarded a contract with D Co., Ltd. to construct a new head office.

B. On July 25, 2014, with respect to the Plaintiff and the ancillary construction works during the instant construction works (hereinafter “instant construction works”), C entered into a subcontract with the effect that (i) the construction period is from July 25, 2014 to November 29, 2014; (ii) the subcontract price is KRW 663,300,000; and (iii) the payment of progress payment is to be made once a month (hereinafter “instant subcontract”).

C. On July 31, 2014, pursuant to the Fair Transactions in Subcontracting Act (hereinafter “subcontract”), C entered into a payment guarantee agreement with the Defendant on the instant subcontract (hereinafter “instant guarantee agreement”) and issued a payment guarantee letter of subcontract consideration (hereinafter “instant guarantee agreement”) to the Plaintiff.

The instant guarantee is indicated as follows: (i) the performance date of the contract is November 29, 2014; (ii) the amount guaranteed is KRW 621,843,750; and (iii) the guarantee period is from July 25, 2014 to February 27, 2015.

The terms and conditions attached to the letter of guarantee of this case contain the following descriptions:

[Contractor C and the other party (Guarantee Creditor) are the Plaintiff. Article 1 (Guarantee Liability) of the Act provides that if the contractor fails to perform the obligation to pay the subcontract price for the contract entered on the front of the contract (hereinafter “Guarantee Creditor”), the Defendant pays to the other party (hereinafter “Guarantee Creditor”) the obligation (limited to the obligation within the period of increase of payment) in accordance with the terms and conditions of this Guarantee.

Article 3 (Limits of Performance of Guarantee Obligations) The deposit the Defendant shall pay to the extent of the amount guaranteed under this Guarantee, and shall be the amount recognized by the standards of Article 7 from among the proceeds of construction works actually incurred by the execution of the guarantee creditor from the first day of the guarantee period to the date of performance of the contract stated in the front Guarantee

provided, however, that:

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-하도급거래 공정화에 관한 법률

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