Where the contractor does not perform or perform the obligation to deliver the building to the contractor who has been simultaneously performing the obligation and claims the contractor for the construction cost, and the court recognizes the construction cost and the damages for delay after the delivery date of the building, the rate of application of the delay damages shall apply.

Where both obligations are simultaneously performed in a bilateral contract, even if one party’s obligation is due, the other party’s obligation is not paid until the other party’s obligation is paid. Thus, if the contractor cannot be deemed to have offered or performed the obligation to deliver the building by the closing date of the fact-finding trial, the obligation to deliver the building cannot be deemed to have been attributable to the contractor for delay. Thus, the interest rate prescribed in the main sentence of Article 3(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings shall not apply to recognizing damages for delay after the date of delivery of the building.

Article 3(1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings; Article 251 of the Civil Procedure Act; Articles 379, 397, and 536 of the Civil Act

Supreme Court Decision 97Da54604, 54611 Decided March 13, 1998 (Gong1998Sang, 1042) Supreme Court Decision 2001Da3764 Decided July 10, 2001 (Gong2001Ha, 1831), Supreme Court Decision 2001Meu725, 732 Decided September 25, 2001 (Gong2001Ha, 2363)

Dasan Construction Co., Ltd.

Defendant

Gwangju High Court Decision 99Na6172 delivered on June 28, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

According to the reasoning of the judgment below, the court below held that the defendant is liable to pay damages for delay at a rate of 5% per annum from the date of delivery of the building in question to the plaintiff, on the ground that the plaintiff did not deliver the building in this case to the defendant, on the premise that the duty to pay the construction cost to the plaintiff under the contract for the construction in this case and the duty to deliver the building in this case to the plaintiff to the defendant was jointly performed.

Examining the record and bilateral contract in light of the legal principles as to the records and bilateral contract, the lower court’s determination that the Defendant’s obligation to pay the construction price to the Plaintiff under the instant contract for construction work and the Plaintiff’s obligation to deliver the instant building to the Defendant is concurrently fulfilled, and that the Plaintiff did not perform its duty to deliver the building is justifiable, and thus, cannot be accepted.

In addition, where both obligations are simultaneously performed in bilateral contract, even if one of the parties' obligations becomes due, the other party's obligations are not fulfilled until the other party's obligations are discharged (see Supreme Court Decisions 96Da40851, 40868, Aug. 22, 1997; 2001Da3764, Jul. 10, 2001; 2001Da3764, Feb. 27, 2001; etc.). In this case, the plaintiff cannot be deemed to have performed, provided or performed the obligation to deliver the building of this case to the defendant by the date of the closing of argument at the fact-finding court, and as such, it cannot be deemed that the defendant is liable for delay delay with respect to the obligation to deliver the building of this case, and as such, the interest rate prescribed in the main sentence of Article 3 (1) of the Act on Special Cases Concerning the Promotion of Legal Proceedings, etc., is not applicable, and there is no error in the misapprehension of legal principles as to the above.

The ground of appeal on this point is without merit.

Therefore, the appeal is 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 Song Jin-hun (Presiding Justice)