Plaintiff (Law Firm LLC, Attorneys Seo Ho-ho et al., Counsel for the plaintiff-appellant)

Social Welfare Foundation Calculation Board (Attorney Kang Young-young, Counsel for defendant-appellant)

December 10, 2014

Gwangju District Court Decision 2014Dadan2742 Decided July 15, 2014

1. Revocation of a judgment of the first instance;

2. Of the instant lawsuit, the part of the claim by the Defendant for the confirmation of the absence of the obligation to return advance payment against the Defendant of Cheongdae Construction Co., Ltd. shall be dismissed.

3. Upon the Plaintiff’s request extended in the appellate trial, it is confirmed that the obligation to pay guaranteed insurance to the Defendant of the Seoul Guarantee Insurance Co., Ltd. based on an insurance contract concluded on May 10, 2013 between the Seoul Guarantee Insurance Co., Ltd. and the Cheongdae Comprehensive Construction Co., Ltd. does not exist in excess of KRW 29,530,530.

4. The plaintiff's remaining extension claims are dismissed.

5. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

A. It is confirmed that there is no obligation to return advance payment to the Defendant of Cheongdae Construction Co., Ltd. based on the contract for the extension of ○○○ Program Construction concluded on May 3, 2013 between the Defendant and the Cheongdae Construction Co., Ltd., and the Defendant. 26,845,936 won.

B. From May 10, 2013, the Seoul Guarantee Insurance Co., Ltd and Cheongdae Construction Co., Ltd. confirmed that there is no obligation to pay guaranteed insurance to the defendant of Seoul Guarantee Insurance Co., Ltd. based on the insurance contract entered in the separate sheet (the plaintiff added the purport of the claim in the appellate court).

2. Purport of appeal

The part against the plaintiff in the judgment of the first instance shall be revoked. The same shall apply to the purport of the claim.

1. Basic facts

A. On May 3, 2013, the Defendant entered into a contract for the instant construction project (hereinafter referred to as “instant construction project”) with Chungcheong Comprehensive Construction Co., Ltd. (hereinafter “Sast Construction”), setting the Defendant’s construction cost of KRW 270,650,00, and the construction period of KRW 850,00 from May 8, 2013 to October 4, 2013 (hereinafter referred to as “instant contract”), and thereafter, paid KRW 81,195,00 (hereinafter referred to as “instant advance payment”).

B. On May 10, 2013, in order to guarantee the repayment obligation of the foregoing advance payment that was paid under the instant contract: (a) between the Seoul Guarantee Insurance Co., Ltd. (hereinafter “Seoul Guarantee Insurance Co., Ltd.”) and the insured; and (b) by failing to perform the instant contract, it concluded an advance payment performance guarantee insurance contract with the purchase amount of the said advance payment to be returned to the Defendant, which was the purchase amount (at KRW 83,971,210, May 23, 2013, increased to KRW 81,195,00, KRW 83,971,210, and KRW 83,971,210) and submitted it to the Defendant. Meanwhile, the Plaintiff jointly and severally guaranteed the indemnity insurance policy issued by the Seoul Guarantee Insurance Co., Ltd. when the Seoul Guarantee Insurance Co., Ltd. pays advance payment to the Defendant under the said advance payment performance insurance contract.

C. After entering into the instant contract, the construction did not immediately commence the instant construction, and even after receiving the Defendant’s demand for construction, the construction was not executed according to the construction schedule (as of July 17, 2013, the advance payment received was limited to less than 10% as of July 17, 2013), and the construction site employees did not use it for personnel expenses and material expenses, etc., and the construction site employees claimed labor expenses, such as molds and steel bars, to the Defendant, the contractor.

D. On October 14, 2013, the Defendant filed a claim for an advance payment performance guarantee with Seoul Guarantee Insurance on the ground that the construction was suspended under the instant contract, and the Seoul Guarantee Insurance was calculated on January 14, 2014, taking into account the nature of the contract up to the time the construction was discontinued, advance payment, and the amount of the construction cost paid, etc. to the Plaintiff on January 14, 2014, KRW 26,845,936, as insurance money related to the instant advance payment performance guarantee

The notice was given to the effect that the insurance money will be paid.

E. Seoul Guarantee Insurance paid KRW 30,979,290 to the Defendant on May 20, 2014.

[Ground of recognition] The fact that there is no dispute, Gap's 1, 2, 4, Eul's 1 through 6, 10 (including each number), and the purport of the whole pleadings

2. Defenses before the merits;

A. The part of the claim against the defendant for the confirmation of the absence of the obligation to return advance payment against the defendant of the Cheong name Construction

The defendant claimed the payment of insurance money under the Seoul Guarantee Insurance Contract for the Seoul Guarantee Insurance, and notified the plaintiff of the payment of insurance money (pre-payment) to inform the defendant of the amount of insurance money to be paid to the defendant on the premise that the Seoul Guarantee Insurance claims for reimbursement. Thus, it is the most effective and appropriate method for the plaintiff to seek confirmation of the non-existence of the indemnity payment pursuant to the contract of this case against Seoul Guarantee Insurance rather than the defendant. Therefore, the plaintiff's claim is against the defendant who is not qualified as the party, and it is unlawful.

However, once the appeal court added the claim for confirmation that there is no obligation to pay the guaranteed insurance to the defendant of the Seoul Guarantee Insurance Co., Ltd. directly related to the obligation to pay the indemnity amount that the plaintiff would bear, the part claiming that there is no obligation to return the advance payment to the defendant of the Seoul Guarantee Insurance Co., Ltd. is unlawful as there is no benefit of confirmation in accordance with the principle of supplement (this part of the appeal filed by the plaintiff is not included in the subject of objection, and it is not against the principle of prohibition of disadvantageous alteration, but it constitutes an exception if the requirements for the lawsuit are not satisfied).

B. The part demanding confirmation of the absence of payment obligation of guaranteed insurance against the defendant of Seoul Guarantee Insurance

The defendant asserts that on May 20, 014, the Seoul Guarantee Insurance was already paid KRW 30,979,290 to the defendant with the guaranteed insurance for advance payment, so the above debt has already become extinct and became a previous legal relationship. In such a case, the plaintiff asserts that there is no reason to seek the benefit of confirmation since he/she waits against the defendant by pursuing the Seoul Guarantee Insurance's claim for reimbursement.

However, even in the past legal relations, if the present rights or legal status has been affected by the present rights or if it is recognized as a valid and appropriate means to eliminate risks or apprehensions in relation to the present rights or legal status, the action for confirmation of such legal relations has a benefit of immediate confirmation (Supreme Court Decision 91Da1134 delivered on June 25, 191). In this case, even if the Seoul Guarantee Insurance has already paid insurance money, there is no difference in the fact that the Plaintiff bears the liability for indemnity, and as the Seoul Guarantee Insurance is placed in an unstable state at any time, the Plaintiff has a benefit to seek a lawsuit for confirmation of existence of the obligation. Accordingly, the Defendant’s defense on this part has no merit.

3. Grounds for the claim;

A. The plaintiff's assertion

After the conclusion of the instant contract, as of June 16, 2014, the construction was carried out the instant construction and achieved the enhancement of the amount equivalent to approximately 70% as of June 16, 2014, and the construction cost is KRW 191,319,80, which exceeds the sum of the said advance payment of KRW 81,195,000 and the Defendant’s direct payments of KRW 25,765,530. As such, it is sought to confirm that there is no surety insurance obligation for the Defendant of the Seoul Guarantee Insurance based on the insurance contract concluded on May 10, 2013 between the Seoul Guarantee Insurance and the Chungcheong Construction.

B. Determination

The advance payment received in the original contract shall be made in order for the contractor to smoothly carry out the construction work, i.e., the pre-paid construction work that the contractor pays in advance to the contractor, i.e., part of the construction work that the contractor pays in advance. It shall not be paid in relation to the specific period of work, but shall be paid in relation to the whole construction. If the construction work is discontinued after the advance payment is made or the contract is terminated and a cause for return of advance payment arises, advance payment shall be appropriated for the construction work amount equivalent to the fixed amount without a separate offset declaration, and if advance payment remains after the payment is made, the contractor shall be interpreted to have the right to return the balance (see Supreme Court Decision 97Da5060 delivered on December 12, 197).

이 사건으로 돌아와 살피건대, 피고가 2013. 5. 3. 청명건설과 이 사건 계약을 체결하고 같은 달 29. 청명건설에게 선급금으로 81,195,000원을 지급한 사실, 청명건설이 이 사건 계약 체결 후 공사일정에 따라 시공하지 아니하고 공사를 중단함에 따라 피고가 2013. 10. 14. 서울보증보험보험에게 이러한 청명건설의 공사 중단을 이유로 위 선급금이행보증보험계약에 따른 보험금의 지급을 청구하였고, 이에 서울보증보험이 기성고와 선급금, 공사대금 지급액 등을 고려하여 산정한 26,845,936원을 선급금이행보증보험금으로 피보험자인 피고에게 지급하겠다는 취지의 통보를 원고에게 한 후 2014. 5. 20. 피고에게 선급금이행 보증보험금 30,979,290원을 지급한 사실은 앞에서 살펴 본 바와 같고, 한편 앞에서 든 증거들에 을7 내지 9호증의 각 기재를 종합하면, 청명건설은 이 사건 계약 체결 후 공사를 제대로 시공하지 아니한 채 공사를 중단하다가 재개하는 상황을 반복하였고, 결국 2013. 10. 14. 공사를 최종적으로 중단한 사실, 이 사건 공사가 위와 같이 최종적으로 중단될 당시 이 사건 공사의 기성고는 약 28.60%로서 이에 따른 기성고 공사대금은 77,430,000원(≒ 270,650,000원 × 28.60%) 정도였고, 피고가 청명건설에게 기 지급한 기성고 공사대금은 25,765,530원이었던 사실, 청명건설은 2014. 5. 23. 피고와 사이에 이 사건 공사에 관하여 타절 정산 합의서를 작성하면서 위와 같은 공사 중단 및 기성고 비율, 기 지급 공사대금 액수 등의 내용을 포함시킨 사실을 인정할 수 있는바, 이에 의하면 청명건설은 2013. 10. 14. 이 사건 공사를 최종적으로 중단할 당시까지 약 28.60% 상당의 공사를 시공하였으므로, 피고는 청명건설에게 위 기성고에 따른 공사대금 77,430,000원을 청명건설에게 지급할 의무가 있다고 할 것인데, 피고는 청명건설에게 위 기성고에 대한 공사대금으로 25,765,530원을 이미 지급하였으므로 이 사건 선급금은 피고가 25,765,530원을 지급하고 남은 기성금인 51,664,470원(= 77,430,000원 - 25,765,530원)에 충당되어, 29,530,530원(= 81,195,000원 - 51,664,470원)만이 남게 되고, 서울보증보험은 최초의 선급금 81,195,000원에 한하여 그 이행을 보증하였으므로(갑 제1호증의 1, 2), 피고에 대한 보험금 지급채무 또한 위 29,530,530원의 범위 내에서만 존재하게 되고 이를 초과하는 범위에서는 존재하지 아니한다(이와 다른 전제에 선 원고의 주장들은 이를 받아들이지 아니한다).

4. Conclusion

Therefore, among the lawsuit of this case, the part of the plaintiff's claim for confirmation of the absence of the obligation to return advance payment to the defendant of Cheong Name Construction is illegal as there is no interest in confirmation, and thus, the judgment of the court of first instance shall be dismissed as it is impossible to maintain the above conclusion. Accordingly, this part of the plaintiff's claim shall be revoked and the part of the plaintiff's claim shall be dismissed, and upon the plaintiff's claim extended in the appellate court, it shall not exceed 29,530,530 won between Seoul Guarantee Insurance and Cheong name Construction as stated in the insurance contract entered into on May 10, 2013, and as long as the defendant contests its existence and scope, it shall not exceed 29,530,530 won, and as long as the defendant contests its existence and scope, it shall be deemed that there is a benefit to seek confirmation. Thus, the plaintiff's claim

[Attachment Form 5]

Judges Song Jin-man (Presiding Judge)