Whether or not there is a duty to pay user fees for the period in which operation has been discontinued due to the order of the principal contractor to suspend operation in the mid-term lease.

In cases where a mid-term lessee (construction subcontractor) operates less than 10 hours a day due to the circumstances of a workplace, he/she shall guarantee that he/she will pay working expenses for 250 hours a month as of 10 hours a day and 25 days a month, but where he/she has agreed not to include only the annual closure period due to a breakdown or natural disaster in the mid-term season, he/she is obliged to pay user fees on the ground that the period of non-operation due to the order to suspend work due to the necessity of fairness by the principal contractor falls under “where he

Article 618 of the Civil Act

Supreme Court Decision 82Meu373 Decided August 24, 1982

[Judgment of the court below]

Kangsan Development Co., Ltd., Counsel for the defendant-appellant

Seoul High Court Decision 82Na3497 delivered on January 20, 1984

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

1. We examine the ground of appeal No. 1 by the Plaintiff’s attorney.

According to the reasoning of the judgment below, the court below determined that the defendant leased 60 E. S. S. shock level from the plaintiff on December 1, 1979 for use in the construction and civil engineering work site of the Gansung-gun located in the Gansung-gun, and (a) the lease period from December 1, 1979 to March 30, 1980 shall be 250 hours a day every 10 hours a day, and even if the above period is less than 10 hours a day due to the circumstances of the workplace, the defendant shall pay the above period by 10 hours a day, and if the above period is used in excess of 250 hours a day, the user fee for the excessive period shall be paid at the end of every month, and (b) the rent for the mid-term period shall be paid at the rate of 11,000 won per hour from the plaintiff on December 1, 1979 to the extent that the above period is not paid for the extended period from 10 hours a day to 15 hours a day.

The purport of the above judgment at the time of the original adjudication is to consider the time of the mid-term lease contract between the plaintiff and the defendant as a monthly contract guaranteeing the time of the mid-term operation at 250 hours per month, as alleged in the theory of the lawsuit. However, in the event that the time of operation exceeds 250 hours per month, the fee for the excess time is additionally paid, and the time of the mid-term period or the time of the temporary closure due to natural disaster is agreed to be deducted from the guarantee operation hours. Therefore, it is unreasonable to conclude that the judgment below did not recognize the above mid-term lease contract as a monthly substitute contract, and thereby violated the rules of evidence and committed the illegality

2. We examine the second ground for appeal.

(1) The lower court determined that the Plaintiff could not claim for suspension of work for the period of 40 days in accordance with the principle of equity, which is a lessee, in light of the following: (a) the Defendant’s construction headquarters of the Korea Electric Power Co., Ltd., a construction owner, was unable to use the aforementioned period for 40 days from May of the same month to March 16 of the same year under the work suspension order issued by the construction headquarters of the said construction headquarters on February 2, 1980; and (b) since the unique nature of nuclear power plant construction, all contracting or subcontracted companies, including the Defendant, who participated in the construction within the above construction site could not follow the direction issued by the Korea Electric Power Co., Ltd., a construction owner; (c) the Defendant suspended work in accordance with the above work suspension order; and (d) the Plaintiff also understood the above circumstances.

(2) However, according to Gap evidence No. 1 employed by the court below, it is clear in light of the defendant's assertion (refer to the legal brief dated January 8, 1982) and the testimony content of non-party 1 (refer to the record No. 149) adopted by the court below, and on the other hand, it is clear that the defendant in the above lease contract, even if the operating hours are less than 10 hours due to the circumstances of the workplace, the operation hours of the monthly charter contract shall be 250 hours a month, and the operation hours shall be added and paid additional hours, and the period of the monthly charter contract shall not be included in the monthly guarantee operation hours. Thus, if the construction site fails to operate the plaintiff's equipment due to the above circumstances, it shall be included in the construction site's construction work hours. It is obvious that the defendant's assertion (refer to the legal brief of January 8, 1982) and the testimony content of non-party 1 (record No. 149) adopted by the court below.

If so, if the order to suspend work of the non-party Korean Electric Power Company, the main contractor, was due to force majeure such as natural disaster, it can only be viewed that the user fee for the period not operated by such order to suspend work falls under the working cost for the case where the workplace is not operated due to the circumstances guaranteeing payment under the above contract.

Therefore, the court below should have determined by considering what reasons the above suspension of work was ordered and whether the suspension of work due to the instruction was caused by the workplace or the cause of force majeure. However, the court below should have determined that the above construction work was merely an inevitable cause such as a nuclear power plant construction, and the plaintiff cannot claim usage fees for the suspension of work due to the cause of force majeure such as natural disaster. Thus, it cannot be said that the court below erred by failing to exhaust all necessary deliberations and interpretation of legal acts.

However, as the member pointed out in the reason for remanding, if the plaintiff voluntarily left the middle-term owner during the period of the suspension of the above work, it would be unreasonable to claim the defendant for the mid-term user fee during the above period. However, the court below rejected the defendant's defense that the plaintiff left the middle-term owner during the suspension of the work in question without grounds for rejection of the plaintiff's defense that the plaintiff left the middle term during

3. We examine the ground of appeal No. 3.

According to the reasoning of the judgment below, the court below recognized the fact that the defendant was unable to use the above flag due to the repair of the above mid-term breakdown from January 18, 1980 to April 4, and from April 7, the above mid-term malfunction from April 1980 to July of the same month, and deducted the user fee of the above period from the plaintiff's claim amount. In light of the records, it is unfair that the court below accepted the above recognition of the court below and did not err in the measures for the preparation of evidence, and therefore, the judgment below erred in the violation of the rules of evidence.

In addition, the above-mentioned mid-term repair is to accept the defendant's wrong fault responsible for the storage and protection of the mid-term period of the lease, so the defendant cannot be exempted from the obligation to pay the user fee during the period of cooperation for the above repair. However, the above-term repair is not alleged in the fact-finding court, and it is groundless to discuss this point.

In addition, the issue is that the lease period of the mid-term period of this case is five months from December 1, 1979 to May 12, 1980, and only ten days from December 1, 1979 to May 10, 1980 due to breakdown is a claim for the usage fee of five months from May 10, 1980, taking into account two days from May 10, 1980 due to breakdown, and thus, the measure to deduct the usage fee of the said period again is unfair. However, according to the records, the plaintiff is claiming at the fact-finding court the usage fee of five months from December 1, 1979 to May 10, 1980 without the above request for the above deduction from the fact-finding court, and therefore, it is not possible to grow up the original decision that did not regard the usage fee of two days from the plaintiff's request as the usage fee of the period of the close. Therefore,

4. We examine the ground of appeal No. 4.

According to the reasoning of the judgment below, the court below held that the claim of KRW 5,940,00 out of KRW 6,440,000 for the remaining mid-term rental fees of this case claimed by the plaintiff remains without merit, and that the defendant paid KRW 500,00 to the plaintiff seven times between December 31, 1979 and August 5, 1980 as mid-term rental fees of KRW 9,110,70 for up to seven times between December 31, 1979 and August 5, 1980 and paid KRW 8,410,700 for the person who was paid by the plaintiff. Thus, the court below held that the remainder of KRW 500,00 was paid.

However, according to the evidence evidence of the above fact-finding, the plaintiff received 451,700 won as of December 31, 1979. However, according to the evidence Nos. 6-1, 13, and 14-1 submitted by the defendant, although the above 451,700 won was recognized as a mid-term rental fee prior to the mid-term rental period of this case (from December 1, 1979 to March 30, 1980), even if the court below recognized that the above amount was a mid-term rental fee prior to the mid-term rental period of this case (from March 1, 1979 to March 30, 1980), it cannot be said that the above evidence relation was open and recognized as a mid-term rental fee which occurred during the lease period of this case.

In addition, the court below cited the evidence No. 1 as evidence of the above fact-finding, and compared to the evidence No. 1 of the above fact-finding, it stated that the plaintiff received KRW 2,00,000 as of August 5, 1980, which is the receipt that the plaintiff received KRW 2,00,000 as of August 5, 198.

However, according to the testimony of Non-Party 2 of the court below after remand, the above evidence No. 1 was written by the above non-party 2, who is the person in charge of accounting of the defendant company and the name of the plaintiff, and then received the plaintiff's seal. It was recognized that Dong was written in full after calculating the amount of the non-payment to the plaintiff according to the equipment ledger and the statement of payment of the defendant company, and that the plaintiff did not settle the balance of the monthly work expense between the plaintiff and the plaintiff. Thus, even if the plaintiff affixed a seal with the above statement that the full payment of the above receipt was completed, it is difficult to find that the above fact alone is sufficient to acknowledge that the plaintiff's obligation of the royalty of this case

5. Ultimately, 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 Lee Lee Sung-soo (Presiding Justice)