2016Da218379 Lawsuits for claiming security deposit

The Korea Institute of Marine Science and Technology (before Change: the Korea Institute of Marine Science and Technology Research)

Attorney Jung-young et al., Counsel for the defendant-appellant

Construction Financial Cooperative

Law Firm LLC (Law Firm LLC)

Attorney Choi Gyeong-won et al.

Han-Gyeong Industrial Development Corporation

Law Firm A&C, Attorney Lee Jae-soo

[Defendant-Appellee] Plaintiff 1 and 1 other

Seoul High Court Decision 2015Na203166 Decided April 1, 2016

May 14, 2020

The original judgment shall be reversed, and the case shall be remanded to the Seoul High Court.

The grounds for appeal are determined.

1. Judgment on the grounds of appeal by the defendant

A. 1) If the contractor entered into a contract for the return of the advance payment to the contractor 0 . 0 . 0 . 0 . 0 . 0 . 0 0 . 1 0 . 2 0 . 3 0 . 8 0 - 1 0 - 1 0 - 8 - 1 - 0 - 1 - 3 - 1 - 0 - 6 - 1 - 1 - 0 - 3 - 1 - 0 - 1 - 0 - 1 - 0 - 1 - 6 - 8 - 1 - 1 - 1 - 3 - - - 6 - 1 - - 1 - - 6 - - 1 - 3 - - - - 1 - - 6 - - 1 - respectively of the above advance payment contract.

F) The Defendant’s Intervenor failed to complete the construction by April 18, 2013, the construction period stipulated in the instant contract.

G) On June 3, 2013, the Defendant’s Intervenor increased the amount of security deposit to KRW 1,803,052,801, and issued a guarantee extended on June 17, 2013 to KRW 42,137,00,00 for the guarantee period. In addition, the Defendant’s Intervenor issued an additional guarantee to KRW 42,137,000 for the guarantee amount, and issued each of the above guarantee certificates to the Plaintiff. Each of the above guarantee certificates included both the contract amount in KRW 7,22,24,250.

H) Meanwhile, around February 2013, Plaintiff 2 increased the amount of the instant contract to KRW 7,935,00,00. On June 3, 2013, Plaintiff 2 determined the amount of the initial examination to KRW 876,00,00 after the second initial examination. Meanwhile, according to the formula in paragraph (a) above, Plaintiff 2 applied the amount of the initial examination to the amount of the instant advance payment and the amount of the initial examination to KRW 200,00,00, whichever is earlier, as well as the amount of the instant advance payment to KRW 3,935,00,00,00, whichever is earlier, and the amount of the instant advance payment to KRW 20,50,000, whichever is earlier, to the extent that the amount of the instant advance payment would be deemed to have been reduced to KRW 25,50,70,000, whichever is earlier.

B) Article 34 of the enforcement guidelines provides that the other party to the contract shall be required to submit securities or a certificate of guarantee regarding advance payment within the same chapter of the instant settlement agreement. Paragraph 3 of the same Article provides that, in the event that a measure of securing claims is taken, the balance of the relevant advance payment (referring to the amount obtained by deducting the amount of advance payment under the instant settlement agreement from the advance payment amount) may be taken upon request of the other party to the contract when settlement is made pursuant to the instant settlement agreement. The enforcement guidelines do not provide for changes in the balance of the advance payment or the amount of claims secured when the contract amount is changed after advance payment settlement. Accordingly, the advance payment is based on the contract amount as at the time of settlement, and thus, it should be deemed that the relevant advance payment is completed.

C) A contractor may recover the advance payment from the advance payment through the guarantee of advance payment to a relatively stable extent. On the other hand, the guarantor guarantees the obligation to return the advance payment from the advance payment to a certain amount. As such, the scope of the liability to guarantee if the amount of advance payment is small, the instant settlement agreement may be deemed to have a significant impact on the guarantor’s interest. The instant settlement agreement provides that the amount of advance payment calculated by the pertinent formula shall be set at the minimum settlement amount. However, if the amount of increase in the contract amount is interpreted to have a total sum of the amount of advance payment calculated on the basis of the increased contract amount, the amount of advance payment shall be calculated by adding up the amount of advance payment calculated on the basis of the increased contract amount to KRW 10,00,000,000 to KRW 2,00,000,000,000,000,000,0000,000,0000,000,000,000,000).

4) Therefore, the plaintiff should have calculated the amount of advance payment by dividing only the amount of the second advance payment into the increased contract amount. Unlike this, the amount of the first advance payment to which the contract amount was applied by both the increased amount of the first advance payment cannot be asserted against the defendant against the instant settlement agreement. Accordingly, the part of the second advance payment, which the plaintiff paid to the defendant's supplementary participant, does not affect the scope of the defendant's guarantee liability. 5) Nevertheless, the court below erred in the misapprehension of legal principles as to the method of assessing the amount of advance payment, i.e., the "amount of the second advance payment" of the instant settlement agreement, where the contract amount was increased, as the cumulative amount, and the "amount equivalent to the price of the second advance payment" of the increased contract amount, and the "amount of advance payment" cannot be asserted against the defendant by the second advance payment of the plaintiff. In so determining, the court below erred in the misapprehension of legal principles as to the method of assessing the amount of advance payment and the grounds for appeal No. 1, 2007.

B. As to the ground of appeal No. 2

For the same reasons as the judgment of the court below, the court below maintained the judgment of the court of first instance that it is difficult to recognize that the amount of the instant contract notified by the plaintiff to the defendant on January 28, 2014 as meaning the fixed amount of the construction work cost. In light of the relevant legal principles and records, the judgment of the court below is not erroneous in the misapprehension of legal principles as to the calculation of the unpaid construction cost and offset, etc. or the relation between the defendant's status as the ground for appeal.

2. Determination on the grounds of appeal by the Defendant Intervenor

Of the grounds of appeal by the Defendant’s Intervenor, the argument overlapping with the Defendant’s first point in the grounds of appeal by the Intervenor is with merit as seen in 1-A. The remainder of the allegations except the above allegations are not legitimate grounds of appeal due to a new argument in the final appeal. Furthermore, even if examining the records in light of the records, the above assertion by the Defendant Intervenor is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee

Justices Park Sang-ok

Justices Ansan-chul

Justices Kim Jong-hwan