In a case where Company A entered into a contract guarantee contract and advance payment guarantee contract with Company B as a guarantee creditor, and Company B terminated the contract, which would not normally proceed due to the cause attributable to Company B, and Company B participated in the lawsuit against Company B, and Company B participated in the lawsuit and participated in the lawsuit before the appellate court, and the dismissal judgment became final and conclusive, and Company B filed a lawsuit against Company B seeking the payment of the guaranteed debt, and Company B extinguished all of Company B’s guarantee debt claims and advance payment claims after five years have elapsed from the termination date of the contract, the case holding that Company B’s guarantee obligation also ceased to exist in accordance with the principle of subsidiary nature of the guaranteed debt, on the grounds that the contract deposit claims and advance payment claims against Company B were extinguished after the expiration of the extinctive prescription period of five years from the termination date of the contract.

In a case where Company A entered into a contract guarantee contract and advance payment guarantee contract with Company B as guarantee creditor in relation to the subcontract agreement with Company B, and Company B terminated the contract due to reasons attributable to Company B; Company B participated in the lawsuit against Company B; Company B participated in the lawsuit and participated in the lawsuit before the appellate court; Company B filed a lawsuit against Company B seeking the payment of the guaranteed debt; and Company B did not claim the payment of the guaranteed debt; Company B’s contract guarantee debt and advance payment refund credit with Company B terminated five years after the contract termination date; and Company B did not claim the guaranteed debt; Company B’s guarantee debt and advance payment credit with Company B to the Mutual Aid Association; Company B’s guarantee debt were sufficiently extinguished in accordance with the principle of subsidiary nature of guaranteed debt; Company B’s principal debt and advance payment credit were not related to Company B’s principal debt; Company B’s principal debt were not related to Company B’s principal debt and principal debt return, and Company B’s allegation that the principal debt was not related to Company B’s principal debt and the principal debt were not related to Company B’s advance payment.

Article 168 subparag. 1, Articles 170(1), 430, and 433 of the Civil Act; Article 64 of the Commercial Act; Article 56(2) of the Enforcement Decree of the Framework Act on the Construction Industry

Sung Industrial Co., Ltd. (Attorney Park Tae-ho, Counsel for the defendant-appellant)

Specialized Construction Financial Cooperative (Attorney Kim Jong-il, Counsel for defendant-appellant)

Daegu District Court Decision 2016Gahap200488 Decided May 12, 2017

April 5, 2018

1. The defendant's appeal and the request for return of provisional payment are all dismissed.

2. The costs of appeal and the costs of filing an application for the return of provisional payments shall be borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 102,950,045 won with 6% interest per annum from October 21, 201 to the date of the first instance judgment, and 15% interest per annum from the next day to the date of full payment.

2. Purport of appeal

The part concerning the plaintiff in the judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

3. Purport of request for the return of provisional payments

The Plaintiff shall pay to the Defendant the amount of KRW 137,456,64 as the return of the provisional payment, and the amount of 6% per annum from May 16, 2017 to the service date of a duplicate of the application for the return of the provisional payment in this case, and 15% per annum from the following day to the day of complete payment.

1. Basic facts

(a) Conclusion of a prime contract and a subcontract;

1) The Plaintiff was jointly awarded a contract for “○○○○○ Construction Project” from the joint Plaintiff-Plaintiff Co., Ltd. in the first instance trial (hereinafter “refined Construction”) and from the Ansan-si around the end of 2009 (the internal ratio: 51%, and 49%, respectively).

2) On January 8, 2010, the Plaintiff and Hoan Construction entered into a contract with the Plaintiff on the part of the construction cost of the said construction works, setting the construction cost of KRW 860,200,000, and the construction period from January 8, 201 to March 14, 201 (hereinafter “instant subcontract”) to subcontract the said construction works with the amount of KRW 86,020,00 (hereinafter “instant subcontract”), and subsequently amended the terms and conditions of the said contract three times as follows.

본문내 포함된 표 ＼ 계약일 변경된 공사기간 변경된 공사금액 1차 변경 2010. 10. 12. 변경 없음 782,707,000원(77,493,000원 감액) 2차 변경 2010. 12. 21. 변경 없음 845,822,000원(63,115,000원 증액) 3차 변경 2011. 3. 9. 2010. 1. 8.~2011. 10. 5. 변경 없음

3) The terms of the instant subcontract agreement attached to the instant subcontract include the following:

Article 7 (Execution of Contract and Guarantee for Construction Costs) (1) of the Terms and Conditions of the Subcontract of Construction Works included in the main sentence and the development of the light industry (A) shall mutually guarantee the execution of contract and the payment of construction costs by the methods falling under any of the following subparagraphs: Provided, That in cases where payment guarantee of subcontract prices is exempted under the Framework Act on the Construction Industry or the Fair Transactions in Subcontracting Act, mutual guarantee may not be granted between them; 1. The development of the light industry shall be subject to the payment guarantee of the amount equivalent to 10% of the contract amount to the Plaintiff. (2) The guarantee between the Plaintiff and the light-sea industry under the provisions of paragraph (1) shall be subject to the payment in cash or the issuance of a written guarantee under the provisions of any of the following subparagraphs.

B. Conclusion of guarantee contracts

1) In relation to the instant subcontract with the Defendant, the Defendant entered into a contract for performance guarantee (hereinafter “instant performance guarantee contract”) with the Plaintiff as the guarantee creditor and an advance payment guarantee contract with the Plaintiff as the guarantee creditor (hereinafter “the instant advance payment guarantee contract”). The instant performance guarantee contract and the advance payment guarantee contract combined with the instant performance guarantee contract and the instant advance payment guarantee contract, respectively, and the Defendant issued a contract for performance guarantee and an advance payment guarantee for the development of the maritime industry.

(1) From January 8, 2010 to March 14, 2011, an advance payment of 860,200,020,000 to 86,020,00,000 to 153,841,50 to 20,000 as classified in the table of construction costs included in the main sentence, 782,707,000 to 78,270,270,70, 7000 to 208, 208. 15,00 to 208,000,000 to 25,00,000,000 to 20,000,000,000 to 18,000,000 to 25,08,000,000 to 20,015,000 to 28,018,000;

2) The terms and conditions of guarantee applicable to each of the instant guarantee contracts include the following:

Article 1 (Guarantee Liability) (1) of the Table contained in the main text of the Act (Liability) In the event that the light industry development (contractor or debtor) fails to perform the obligation or obligation to the plaintiff (the other party or guarantee creditor) due to a cause attributable to the front contract, the defendant bears the guarantee obligation in accordance with the contents of the guarantee, the matters specified in the letter of guarantee under Article 56 (2) of the Enforcement Decree of the Framework Act on the Construction Industry, and the terms and conditions of the terms and conditions. (2) The details of each guarantee accident and the limit of the deposit are as follows: The deposit for each guarantee accident shall be the amount calculated by subtracting the unpaid progress payment out of the advance payment within the scope of the contract cancellation or termination deposit due to the failure to perform the contract within the contract guarantee period within the scope of

(c) Advance payment and mutual aid agreement; and

On April 15, 2010, the Plaintiff agreed to provide advance payment of KRW 153,841,50,00 in advance for the development of the light industry and to provide an amount of KRW 11,704,50 in July 15, 2010, KRW 19,369,647 in October 6, 2010, KRW 19,270,350 in advance, KRW 350 in November 30, 201, KRW 35,418,735 in advance, and KRW 8,265,145 in August 30, 201, + KRW 94,028,37 in advance payment of KRW 11,50 in consideration of the construction cost of the instant subcontract + KRW 19,369,647 in consideration of the amount of advance payment + KRW 19,365,3755,4750 in addition to the amount of advance payment.

(d) Cancellation of the subcontract and request for the deposit money;

1) Around October 13, 201, the Plaintiff notified the Defendant that the instant subcontract was terminated in accordance with Article 25 of the Conditions on the Contract for the Development of the Maritime Industry on the ground that the construction under the instant subcontract did not normally proceed due to the causes attributable to the development of the Maritime Industry (such as delay of construction and provisional attachment on the amount of construction completion). At the same time, the Plaintiff notified the Defendant of the performance of the contract by mail proving the content of the development of the Maritime Industry on October 13, 2011, and at the same time requested the Defendant to pay KRW 59,813,123, which was the remainder after deducting the amount of advance settlement of KRW 94,028,37 as seen earlier from the amount of KRW 153,841,50 under the instant advance payment contract.

2) On October 14, 201, 201, Hoan Construction demanded the Defendant to pay KRW 62,040,070,000, excluding KRW 8,459,930,000, which was paid in advance. On December 14, 2011, notified the Defendant that the instant subcontract modification contract was terminated pursuant to Article 25 of the Subcontract Conditions.

3) Following the termination of the instant subcontract, the deposit that the Defendant would pay to the Plaintiff under each of the instant guarantee contracts is as follows.

59,813,123 won in total of 102,950,045 won in accordance with the internal ratio (51%) of the total of 84,582,200 won in aggregate of 43,136,922 won in non-fixed-term contract performance bonds included in the main sentence.

E. Related cases

1) On April 15, 2013, the Defendant filed a lawsuit against the Plaintiff seeking confirmation of the absence, etc. of a surety obligation under each of the instant guarantee contracts against the Plaintiff (hereinafter “litigation seeking confirmation of existence of a surety obligation”) with the Daegu District Court 2013Kahap3754, and filed an appeal against the Plaintiff on October 10, 2013, the Daegu High Court 2013Na5832, which was sentenced to dismissal judgment. The appellate court dismissed the Defendant’s appeal regarding each of the instant guarantee contracts on October 23, 2014, and the said judgment became final and conclusive on November 15, 2014. Meanwhile, on August 12, 2013, the said lawsuit was pending in the first instance court to assist the Defendant in a lawsuit seeking confirmation of existence of a surety obligation and to intervene in the appellate court.

2) On June 12, 2013, the ordinary maritime industry development filed a lawsuit against the Plaintiff for the payment of the construction cost under several subcontract agreements, including the subcontracted construction work in this case, which was subcontracted by the Plaintiff as the Daegu District Court 2013Kahap5903, and was sentenced to a dismissal ruling on September 26, 2014. The ordinary maritime industry development filed an appeal against the said judgment as Daegu High Court 2014Na4652 (principal suit), 2014Na5198 (Counterclaim), but was sentenced to the dismissal ruling on February 9, 2017, and the said judgment became final and conclusive on March 3, 2017.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 9 (including branch numbers for those with additional numbers; hereinafter the same shall apply), Eul evidence 3 and 5, the purport of the whole pleadings

2. Determination as to the cause of action

A. Regarding claim for contract performance guarantee

In the event that the instant subcontract was terminated due to the nonperformance of contractual obligation under the contract between the Plaintiff, Jungan Industrial Development, and Jungan Industrial Development, the contract performance guarantee money is agreed to vest in the Plaintiff and Jungan Industrial Development; the development of the light-sea industry was concluded with the Defendant as the guarantee creditor; the Plaintiff concluded the instant performance guarantee contract with the Plaintiff on October 20, 201; and the fixed industry was terminated on December 14, 201 on the ground that the cause attributable to the development of the marine industry was attributable to the surrounding around December 14, 2011. Accordingly, the Defendant, the guarantee creditor of the instant performance guarantee contract, is obligated to pay the Plaintiff the contract performance guarantee money of KRW 43,136,922 and the delay damages corresponding to the Plaintiff’s share in the contract performance guarantee money of KRW 84,582,200.

B. As to the claim for advance payment deposit

The facts are as follows: (a) the Plaintiff entered into the instant advance payment guarantee contract with the Defendant as the guarantee creditor; (b) the Plaintiff paid KRW 153,841,500 to the Plaintiff around April 2010; and (c) the Plaintiff and the Plaintiff agreed to deduct the construction cost equivalent to a total of KRW 94,028,377 out of the subcontract price of this case from the said advance payment; (d) the advance payment that has not been settled between the Plaintiff and the Plaintiff is KRW 59,813,123 (153,841,50 - 94,028,377). Accordingly, the Defendant is obligated to pay the Plaintiff the balance of the advance payment, KRW 59,813,123,123 (153,841,500 - 94,028,377).

C. Sub-committee

Ultimately, the Defendant is obligated to pay to the Plaintiff the amount of KRW 102,950,045 (the contract deposit KRW 43,136,922 + advance payment deposit KRW 59,813,123) and damages for delay calculated at each rate of 15% per annum under the Commercial Act from October 21, 201, which is the date of termination of the instant subcontract until May 12, 2017, which is the date of the first instance judgment that the Plaintiff seeks, and from the next day to the date of full payment, from the next day to the date of full payment.

3. Determination on the assertion of extinctive prescription

A. The parties' assertion

1) The defendant's assertion

On October 20, 201, when the instant subcontract was terminated, the period of extinctive prescription expired on October 20, 201, and five years from October 20, 201. Accordingly, both the contractual performance guarantee and the obligation to pay advance payment, which are the guaranteed obligation owed by the Defendant to the Plaintiff, were extinguished in accordance with the principle of subsidiaryness of the guaranteed obligation.

2) The plaintiff's assertion

In a lawsuit seeking confirmation of the existence of a prior obligation that the Defendant filed against the Plaintiff, the Plaintiff participated in the lawsuit seeking confirmation of the existence of a prior obligation, and actively asserted that the Plaintiff did not have any contractual performance bond and advance payment return claim for the development of the Maritime Industry. Accordingly, the Plaintiff actively reflected in the claims for the development of the Maritime Industry, and accepted such claims and won the lawsuit in the above lawsuit. This ought to be deemed to be the same as the Plaintiff’s winning the lawsuit. As such, the statute of limitations on the Plaintiff’s contractual performance bond and advance payment claim for the development of the Maritime Industry was interrupted. Accordingly, the Defendant’s obligation to pay the instant contract performance bond and advance payment deposit against the Plaintiff, which constitutes the guaranteed obligation, is not extinguished in accordance with the principle of non-performance of the guaranteed obligation.

B. Determination

1) In general, a judicial claim under Article 168 subparag. 1 and Article 170(1) of the Civil Act refers to cases where a right holder claims prescription as the plaintiff as the defendant in the form of a lawsuit. However, as to the plaintiff's filing of a lawsuit, it is reasonable to interpret that the same includes a case where a person who claims prescription as the defendant has responded to the lawsuit by the defendant and actively claims the right in the lawsuit and has accepted the lawsuit. The period of prescription is a system established to deny the protection of the person above the right and to give a certain legal effect by respecting the fact that it is common in social life, and it is no longer possible to respect such fact while the above situation remains in existence, and thus, the purport of recognizing the interruption of prescription is to recognize the interruption of prescription immediately in order to lose the effect of the period of prescription, considering that there is no reason to respect the situation of the fact, and as such, it cannot be viewed that the right holder does not go against the right of the other party's filing of a lawsuit directly from the person who asserts prescription, and it does not go against one another person's right.

2) According to the evidence revealed earlier, on April 15, 2013, the Defendant filed a lawsuit seeking confirmation of non-existence of the guaranteed obligation against the Plaintiff under each of the instant guarantee contracts against the Plaintiff. The Plaintiff responded to the Defendant’s claim on June 17, 2013 by submitting a written response, etc. and actively asserted the existence of the guaranteed obligation under each of the instant respective guarantee contracts. The Defendant’s development of the ordinary sea industry, which is the primary debtor of each of the instant guaranteed obligation, participated in the instant lawsuit for the Defendant on August 12, 2013 where the lawsuit seeking confirmation of non-existence of the guaranteed obligation against the Plaintiff was pending in the first instance court, and the instant subcontract was terminated due to the Plaintiff’s failure to pay advance payment, or the Plaintiff did not have asserted that there was no contractual obligation and refund of advance payment obligation against the Plaintiff of the industrial development guaranteed under each of the instant respective guaranteed obligation under each of the instant respective guarantee contracts, and the Plaintiff presented a written reply to the lower court’s judgment regarding the Plaintiff’s respective principal obligation and the instant advance payment claim 2010.

3) According to the above facts, the defendant's lawsuit seeking confirmation of the existence of the principal obligation against the plaintiff was mainly at issue, rather than whether the defendant's guarantee obligation under each contract of this case exists, and the existence of the obligation to pay the contract deposit and the obligation to return advance payment against the plaintiff of the light marine industry development, which is the principal obligation. After participating in the lawsuit for confirmation of the existence of the principal obligation, it is sufficient to view that the plaintiff's assertion that there was no principal obligation on the ground that the subcontract of this case was terminated due to the plaintiff's fault or the plaintiff paid advance payment. Accordingly, since the plaintiff actively disputed the existence of the principal obligation of the light marine industry development, the plaintiff's assertion that the principal obligation of the light marine industry development exists, as well as the defendant's right to develop the light marine industry, it is sufficient to view that the plaintiff is not a locked person on the above right by asserting that the right of the former marine industry development as well as the defendant did not exist. Accordingly, in the lawsuit seeking confirmation of the existence of the principal obligation, the plaintiff's above response act constitutes a cause for interruption of extinctive prescription (see Supreme Court Decision 2014.2014.

4. Determination as to the defendant's application for return of provisional payments

On May 16, 2017, the Defendant asserted that the Plaintiff paid KRW 137,456,644 to the Plaintiff based on the judgment rendered by the provisional execution sentence of the first instance court on May 16, 2017, which was subsequent to the pronouncement of the first instance judgment, and sought payment of KRW 137,456,64 as the return of the provisional payment, on the premise that the judgment of the first instance is revoked. However, as seen above, the judgment of the first instance is justifiable, and thus, the Defendant’s application for the return of the provisional payment premised on the revocation

5. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is just in conclusion, the defendant's appeal and the request for return of provisional payment are dismissed on the grounds of its merit. It is so decided as per Disposition.

Judges Park fixed-chul (Presiding Judge)