[1] The nature of the construction supervision contract for housing and others

[2] The method of calculating remuneration for supervision affairs where a construction supervision contract, such as a house, is terminated during the proceeding

[1] Under Article 2 subparag. 9 of the Construction Technology Management Act, Article 33-6(2), (3), and (8) of the Housing Construction Promotion Act, and Article 34-6(3), 34-7, 34-9, and 34-10 of the Enforcement Decree of the same Act, construction supervisor of a construction project shall regularly conduct quality inspections and safety inspections for the purpose of preventing defective construction works in a third-party independent position, and if any inappropriate construction works are being implemented, he/she need to put the same in the progress of the construction project, such as the correction, reconstruction, and request for suspension of the construction project. In cases where there is a concern that the construction project is being under way, if there is a concern that the construction project is likely to not comply with the scheduled plan, he/she shall analyze the cause thereof and report the result thereof. Therefore, it is reasonable to deem that the construction project is not under way or without performing supervision in parallel with the scheduled progress of the construction project, and thus, it shall be deemed that the construction project is not subject to supervision independently and without any essential nature of the construction project.

[2] In accordance with the provisions of Article 27 of the Construction Technology Management Act, the scope of remuneration for the work shall be determined with the focus on the performance of supervisory duties in light of the standards of remuneration for construction works publicly notified by the Minister of Construction and Transportation pursuant to Article 196-20 of the Public Notice of the Ministry of Construction and Transportation on January 15, 1996, the standards of remuneration for supervision expenses of the Korea Construction Consulting Association, the standards for adjustment of supervision expenses of the Housing Construction Promotion Act pursuant to Article 33-6 (6) of the same Act and Article 22-7 of the Enforcement Rule of the same Act, which are publicly notified by the Minister of Construction and Transportation pursuant to the Ministry of Construction and Transportation on February 1, 1996. The scope of remuneration for the work when the contract is terminated, shall be determined with the focus on the performance of supervisory duties. In determining the remuneration, where the remuneration is determined by the period of remuneration fixed by the period of time under the proviso of Article 686 (2) and (3) of the Civil Act, it shall be reasonable to request the ratio of remuneration to the actual performance of supervisory duties to the extent applied without any reason.

[1] Article 2 subparagraph 9 of the Construction Technology Management Act, Article 33-6 (2), (3), and (8) of the Housing Construction Promotion Act, Articles 34-6 (3), 34-7, 34-9 and 34-10 of the Enforcement Decree of the Housing Construction Promotion Act, Article 680 of the Civil Act / [2] Article 686 of the Civil Act, Article 27 of the Construction Technology Management Act, Article 33-6 (6) of the Housing Construction Promotion Act, Article 22-7 of the Enforcement Rule of the Housing Construction Promotion Act

[Defendant-Appellee] The Korea National Institute of Certified Public Accountants (Law Firm Haeng, Attorneys Yang Tae-soo et al., Counsel for defendant

Housing Guarantee Co., Ltd., Ltd. (Attorneys Park Young-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 99Na14695 delivered on March 10, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to the records, in light of the part that the court below acknowledged that the housing construction company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company of the company.

2. As to the grounds of appeal Nos. 2 and 3

A. The court below rejected the Plaintiff’s claim on the following grounds: (a) the period during which the Plaintiff performed the pertinent construction works from September 3, 1997 when the construction works commenced to November 25, 1997 when the construction works were completely interrupted; (b) the Plaintiff’s supervisor performed the Plaintiff’s duty of examination of documents, drawing review, etc. during the period during which the construction works commenced; (c) it is merely an incidental duty to carry out the actual supervision; (d) there is no evidence suggesting that there was a special agreement to separately pay supervision fees for the period during which the construction works commenced; and (e) the Plaintiff is not entitled to claim supervision fees for the period during which the construction works commenced to carry out the actual supervision.

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) Comprehensively taking account of the provisions of Article 2 subparag. 9 of the Construction Technology Management Act, Article 33-6(2) and (3) of the Housing Construction Promotion Act, and Article 34-7 of the Enforcement Decree of the same Act, which stipulate the contents of the work by the construction supervisor, the supervisor of construction work, including housing, shall examine and confirm whether the constructor executes the construction work in compliance with the design documents and other related documents; whether the construction materials used by the constructor conforms to the standards under the related Acts and subordinate statutes; whether the design documents conform to the relevant topography; whether the design documents conform to the relevant topography; whether the design plans and plans are appropriate; whether the construction plans and the scheduled construction schedule and the construction drawings; and whether the quality control and the construction work management are performed; if any violation are discovered, other than technical guidance, the supervisor may instruct the construction supervisor to correct the violation; or request the suspension of the construction work; and if any, the supervisor shall be subject to replacement of the construction supervision at the construction site for a period of one or more months; and the supervisor shall not be subject to supervision at the same time during the construction supervision.

(2) Therefore, a supervisor of a construction work must go through the progress of the construction work, such as the quality inspection and safety inspection of the construction work in question, if any inappropriate construction work is being performed periodically for the purpose of preventing defective construction work in a third party independent position. If the construction work is being conducted, it is necessary to correct the construction work in question, demand the reconstruction, or the suspension of construction work. In the event that the construction work is likely to be in progress according to the plan, a thorough examination is likely to lead to the failure of complying with the scheduled air, the construction work is being in charge of analyzing the cause and reporting the result. Therefore, the construction work's progress is so poor that the construction work does not go without any supervisory work or is not carried out at the construction site without a lawful procedure. Thus, it is natural to view that the degree of the progress of the construction work subject to supervision and the contents of supervisory work cannot necessarily coincide in proportion to the degree of the construction work to be performed. Therefore, the nature of the construction work contract, such as the construction work contract of this case, has the inherent nature of the construction work independently from the contract.

(3) In addition, according to the price standards for supervision of construction works publicly notified by the Minister of Construction and Transportation on January 15, 1996 pursuant to Article 27 of the Construction Technology Management Act, the prices for supervision of construction works by a specialized construction-supervising firm registered pursuant to Article 28 of the same Act shall be calculated based on the fixed-amount calculation method, in principle (direct personnel expenses, direct expenses, additional work expenses, expenses, and royalties), and the number of persons by class of supervisors to be invested in accordance with the ordinary total construction cost shall be calculated by multiplying the number of persons to be invested in accordance with the average construction cost by the number of direct and indirect expenses, compensation expenses, and then the Korea Construction Consulting Engineers Association shall calculate the total construction cost by the minimum number of supervision personnel necessary for management and the suspension of construction works continues for a long time. According to Article 33-6 (6) of the Housing Construction Promotion Act and Article 22-7 of the Enforcement Rule of the same Act, the price for supervision of construction works shall be calculated by multiplying the total construction cost by the total construction cost and the total construction cost determined by the maximum number of supervision cost.

(4) Therefore, in light of the nature of a contract for construction supervision, where a contract for construction supervision terminates during the proceeding, the scope of remuneration for the relevant affairs shall be determined based on the content of the performance of the supervision. In determining that remuneration is determined by the period under the proviso of Article 686(2) and the proviso of Article 686(3) of the Civil Act, a claim for the agreed amount corresponding to the part during which the period has expired until the time when the supervision was actually performed. Even in cases where a contract for temporary payment was made or the period of remuneration was determined, a claim for the agreed amount corresponding to the part during which the period has expired may be made only when the supervision is completed without any cause attributable to the supervisor. In determining the rate of performance of the supervision affairs, a claim for remuneration according to the ratio of affairs already performed, which is applicable to such cases, shall be made according to the relevant statutory regulations, the ratio of actual supervision during the entire supervision period, the number and administration period of supervisors by grade, standards for calculating supervision expenses, practices in the industry, and the degree of construction works subject to supervision.

C. Nevertheless, the court below, without taking into account various factors as seen earlier, determined the ratio of the number of days of supervision from the date of commencement of construction work to the date of discontinuance of construction work. In light of the contents of supervision under the relevant laws and regulations as seen earlier, it cannot be readily concluded that the duty of review of documents and review of drawings, etc. presented by the court below constitutes an incidental business of supervision. Furthermore, Heung Houses was in charge of construction work in this case due to failure to pay housing. After the commencement of construction work in this case, when entering into the supervision contract with the Plaintiff on October 7, 1997, which was after the actual commencement of construction work in this case, the parties determined the time of supervision retroactively to June 10, 1997, which was the date prior to the actual commencement of construction work, at least from June 10, 1997 to September 2, 197, which was the date prior to the actual commencement of construction work, and thus, the court below did not recognize that it had any further effect on the actual construction period.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)