Of the claims for the attached construction cost, the remainder after deducting additional construction cost, etc. is liable to pay the construction cost.

Of the construction price claims notified of attachment of claims, there is a duty to pay the remainder of the construction price and damages for delay after deducting the construction cost already paid, the employment insurance premium and the additional construction cost incurred as a result of the occurrence of losses caused by defective construction works.

2011 Gohap2610 Of claims seizures

Republic of Korea (U.S.)

Nam

December 28, 2011

January 18, 2012

1. The defendant shall pay to the plaintiff 178,242,820 won with 5% interest per annum from January 11, 2011 to January 18, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. One-fifth of the costs of lawsuit shall be the plaintiff, and the remainder shall be the defendant respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 219,844,010 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Determination as to the cause of claim

A. The plaintiff's assertion

1) On December 17, 2007, the Defendant awarded a contract for construction work (hereinafter referred to as the “construction work of this case”) to Nonparty LA on the 000-00 ground and the 418,500,000 construction cost for the 418,50,000 construction cost (=3,100,000 x 135,000 x), and on October 15, 2008, the approval for the use of the building of this case was made by the head of Gangnam-gu head of Gangwon-gu.

2) In order to collect the maximumA’s delinquent taxes, the Plaintiff seized the amount equivalent to the delinquent taxes out of the instant construction cost claims of the largestA, and notified the leastA of the attachment of claims.

3) Accordingly, the Defendant is obligated to pay the Plaintiff the remainder of the construction cost of KRW 180,00,000,000, which was already paid to the leastA upon the Defendant’s request for seizure and collection, and the remainder of the construction cost of KRW 3,65,990, which should have been paid by the leastA upon the Defendant’s request for seizure and collection, after deducting the amount of the construction cost of KRW 15,00,000,000 already paid to the Plaintiff, and the amount of employment premium of KRW 3,65,990, which the Defendant had to have been paid by the leastA.

(b) Fact of recognition;

1) On December 17, 2007, the Defendant contracted the instant construction work to Nonparty LA at KRW 391,50,000 (= KRW 2,900,000 per square year).

2) On October 15, 2008, on the instant building, the head of Gangnam-gu Office approved the use of Class II neighborhood living facilities for the purpose of Class II neighborhood living facilities, and on October 24, 2008, registration of preservation of ownership was made in the name of the Defendant.

3) On March 3, 2010, in order to collect the global income tax and value-added tax of the largestA, the amount equivalent to the above delinquent taxes out of the instant construction cost claims against the Defendant of the largestA against the Defendant of the instant LA, the Plaintiff seized the Defendant’s total amount equivalent to the delinquent taxes out of the construction cost unpaid to the largestA as of the date of seizure. As such, the Plaintiff issued the notice of attachment by registered mail to the effect that the Defendant would pay the balance of the obligation to the Goyangyang Tax Office after receipt of the notification of attachment, and the notice of attachment was served on March 9, 2010.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1 to 6, Gap evidence 2-1 to 3, Gap evidence 4-1, 2, Gap evidence 11-1, Gap evidence 12, and 20, Gap evidence 12, and the purport of the whole pleadings.

4) The Plaintiff already paid 180,000,000 won, which was part of the construction price of the instant case, to the LA, and paid 15,000,000 won to the Plaintiff upon the Plaintiff’s request for seizure and collection. Under the instant construction contract, the Defendant’s employment premium borne by the Defendant on behalf of the LA is the fact that the employment premium was 3,655,990 won.

C. Determination

Under Article 41(2) of the National Tax Collection Act, the Plaintiff seeks the payment of the above credit amount to the Defendant by subrogation of the largestA. The Defendant is obligated to pay to the Plaintiff the above credit amount of KRW 180,50,000,000, the above term payment of KRW 15,000,000, the above term payment of KRW 15,000,000, and the above term payment of KRW 3,65,900, and the above employment insurance premium of KRW 192,84,100 (=391,50,000 - 180,000,000 - 15,00,000,000 - 3,65,90, and damages for delay.

The Plaintiff asserts that the instant construction contract was concluded at KRW 3,100,000 per square year, not KRW 2,900,000 per square year, but KRW 3,100 per square year. However, the evidence No. 19 (A copy of the construction contract) is a copy of the contract for the construction contract between the Defendant’s father and his wife, not the Defendant, and the witness LA set at the market price at KRW 3,100,00 per square year. Since the ownership of the instant building site was transferred to the Defendant, the Plaintiff testified that the ownership of the instant building site was transferred to the Defendant, and was set at KRW 2,90,00 per square year at the time of the conclusion of the contract with the Defendant, the Plaintiff’s above assertion is groundless

2. Judgment on the defendant's defense, etc.

A. The defendant's assertion

1) At the request of the leastA, the Defendant paid a total of KRW 21,601,190 to the subordinate construction business operators as follows:

2) In addition, even though LA had decided to complete the remainder of the construction not related to the approval for use after the preservation registration was completed, the remainder of the construction was not made, and there was also a defect due to the defective construction in the instant building. Such defective construction and defective construction costs are KRW 23,040,000 in total as follows:

3) Although the Defendant was aware of the fact that the leastA was constructing a legitimate building, the leastA had the Defendant imposed KRW 4,843,00 for compelling the performance on the Defendant by constructing a new illegal building. This should be borne by the leastA.

4) Accordingly, in the case of unpaid construction costs, KRW 21,601,190, and KRW 23,040,000, and KRW 4,843,00,00, shall be deducted from the above-paid construction costs.

(b) Fact of recognition;

1) In the construction of the instant building with the Defendant, the LA agreed to allow the Defendant to use the instant building for the studio rental purpose by obtaining a construction permit for neighborhood living facilities, completing the construction, and completing the use approval after obtaining the use approval.

2) In order to use the instant building as a studio or reading room, additional fire-fighting systems and flame retardation works and installation works for electric measuring instruments are required. The construction costs are KRW 8,00,000,000, respectively.

3) During the construction of the instant building, LAA did not perform the construction of the front section of the building, the outer wall of the building in question, and the cost of the construction is KRW 2,101,190.

4) Although the Defendant demanded the leastA to construct the 4th and the 5th floor mold, the leastA refused construction cost on the ground that the construction cost increased, and the Defendant’s payment of construction cost would proceed with the construction.

5) The instant building resulted in water leakage due to defective construction works of the leastA. The Defendant around September 2009, around 2,3,400 and around 3,500,000 won for the repair of defects.

[Reasons for Recognition] Eul's evidence Nos. 11-3, Eul's evidence Nos. 14-1 through 8, Eul's evidence No. 14-1, Eul's evidence No. 16, and 18, Eul's testimony and the whole purport of each of the testimony and arguments of the witness mostAA and KimCC

C. Determination

1) The leastA did not perform part of the construction of the instant building, and caused damage to the Defendant due to defective construction. Since the Defendant is obligated to pay the sum of KRW 14,601,190 to the Defendant as indicated below, it must be deducted from the amount to be paid by the Defendant to the Plaintiff.

2) The Defendant asserts that the 4th and fifth storys construction, each floor boiler room, each floor boiler room, crime prevention window and window studs construction, and rainwater storage construction should also be implemented by the leastA. However, it is not sufficient to acknowledge the 4th and fifth story construction, each of the statements in Nos. 3, 4, 5-1 and 5-2, and the testimony in the witness highestA and KimCC, and there is no other evidence to acknowledge it. Accordingly, the Defendant’s assertion on this part is without merit.

3) The defendant asserts that the Doing and repair work requires Doing and repair work due to the defective construction work of the leastA, and that the cost thereof is KRW 15,00,000,000. However, there is no evidence to prove whether the above construction work is necessary and that the cost thereof is 15,00,000. Therefore, the defendant's allegation in this part is without merit.

4) The Defendant asserts that the charge for compelling execution should be borne by the leastA. The Defendant did not intend to undertake construction with the first residential road after obtaining the permission for use from the leastA, but rather concluded a construction contract for the use for the studio use after obtaining the approval for use as a neighborhood living facility as above. In light of the foregoing, the Defendant seems to have known that such a method was in violation of the permission for construction. Accordingly, there is no evidence to acknowledge that the charge for compelling execution due to illegal construction should be borne by the Defendant, and that the leastA bears the charge for compelling execution. Accordingly, this part of the Defendant’s assertion is without merit.

D. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff the remainder of the construction cost of KRW 178,242,820 remaining after deducting the said KRW 14,601,190 from the said KRW 192,84,100 (i.e., KRW 192,84,100 - KRW 14,601,190) and damages for delay at each rate of 20% per annum under the Civil Act from January 11, 2011, which is the day following the delivery date of the copy of the complaint of this case sought by the Plaintiff, to the Defendant as to the existence or scope of the instant obligation.

3. Conclusion

Thus, the plaintiff's claim is accepted within the scope of the above recognition, and the remainder is dismissed as there is no ground.