[1] In a case where there is an agreement between the parties on the date of payment of the construction cost under a subcontract construction contract, whether the date of payment should be determined accordingly (affirmative)

[2] In a case where Gap corporation entered into a contract with Eul corporation to subcontract part of the new construction work of the building, and entered into an agreement for the payment date for the construction work, the case holding that the court below erred in the misapprehension of legal principles as to the interpretation of disposal documents and the payment date for the subcontract price, on the ground that the payment date for the construction work pursuant to the subcontract is to be determined according to the agreement between Gap and Eul, and that it is not an object

[1] Articles 656(2) and 665(2) of the Civil Act, Article 13(2) of the Fair Transactions in Subcontracting Act / [2] Articles 656(2) and 665(2) of the Civil Act, Article 13(2) of the Fair Transactions in Subcontracting Act

New building stones Co., Ltd. (Bae & Yang LLC, Attorneys Gangnam-ho et al., Counsel for the defendant-appellant)

Korea Housing Guarantee Co., Ltd. (Attorney Shin Sung-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na56915 decided November 24, 2010

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 656(2) of the Civil Act which applies mutatis mutandis pursuant to Article 665(2) of the same Act provides, “The remuneration to the person who ordered the work of the contractor shall be paid at the time agreed, customary, and unless the time agreed otherwise, shall be paid without delay after the completion of the agreed work.” Article 13(2) of the Fair Transactions in Subcontracting Act provides, “If the date for the payment of the subcontract price is not fixed, the date for the receipt of the object, etc. shall be deemed the date for the payment of the subcontract price, and if the date for the payment of the subcontract price is fixed 60 days after the date for the receipt of the object, etc., it shall be deemed the date for the payment of the subcontract price, and if the parties have agreed on the date for the payment of the subcontract price, the date for the payment shall be deemed the date for the receipt of the object, etc. shall be determined

According to the reasoning of the judgment of the court below, on May 1, 2008, the contract for the construction work that was concluded on May 1, 2008 with the Plaintiff to subcontract the construction work (hereinafter “instant subcontract”) among the construction work of tin Hanjin-jin-gu Construction Work (hereinafter “the instant construction work”) from the date of receipt of the object, and the contract was concluded that “the amount of payment for the construction work shall be paid within 60 days from the date of receipt of the object and shall be governed by Article 3(4) of the Special Conditions for the Subcontract, and Article 3(4) of the condition of the subcontract provides that “The bill issued as the price for the construction work shall be paid to the Plaintiff within 30 days from the date of issuance of the tax invoice and invoice, and the due date of the bill shall be 120 days from the end of the following month from the date of issuance of the tax invoice.” Thus, it is evident that there is an agreement on the payment date for the construction work under the instant subcontract.

Therefore, the date of the payment of the construction price under the instant subcontract shall not be determined as the date of receipt of the object, etc., unless it is stipulated by the agreement between the Plaintiff and the current owner.

Nevertheless, the court below held that the subcontract in this case did not separately set the date for the payment of the price for the construction work, which is equivalent to 95% of the total amount of the construction work, on the date when the approval for the use of new construction works from the YY-Jk-J-J-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-P-

Therefore, the part of the judgment below against the defendant 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 Ahn Dai-hee (Presiding Justice)