Lee Jae-hoon (Attorney Ba-sung et al., Counsel for defendant-appellant)

Kim Chungcheongnam-Nam (Attorney Jeon Young-soo, Counsel for the defendant-appellant)

9.1, 203

Seoul District Court Decision 2001Gahap73386 Delivered on July 31, 2002

1.The judgment of the first instance shall be modified as follows:

A. The defendant

(1) For 4,131,00 won and 1,827,500 won among them, 5% per annum from January 8, 2002 to May 31, 2003; for 20% per annum from the next day to the date of full payment; for 2,303,50 won, 5% per annum from January 8, 2002 to October 15, 2003; and for 20% per annum from the next day to the date of full payment.

(2) The Appointers' 4,436,40 won, 4,233,760 won, 3,490,600 won, 4,785,640 won, 4,785,640 won, 5,000 won, 2,702,400 won, 3,59,640 won, 3,640 won, and 20% amount per annum, for 3,59,640 won, from January 8, 2002 to May 31, 2003, from the next day to the full payment date, shall be paid with the amount of 20% per annum.

(3) 5% per annum from January 8, 2002 to October 15, 2003; and 20% per annum from the following day to the full payment date, shall be paid to the Plaintiff (Appointed Party); and

(4) For 6,57,120 won and 5,684,600 won among them, 5% per annum from January 8, 2002 to May 31, 2003; for 20% per annum from such date to full payment; for 872,520 won, 5% per annum from January 8, 2002 to October 15, 2003; and for 20% per annum from such date to full payment; and

(5) From January 8, 2002 to May 31, 2003, 200 to May 31, 2003, 200 per annum 5% per annum for 6,59,880 won and 6,192,480 won among them, 5% per annum for 407,40 won from January 8, 2002 to October 15, 2003, and 5% per annum for 20% per annum from the following day to the full date.

B. All remaining claims of the Plaintiff (Appointed Party) are dismissed.

2. Of the total litigation cost, 75% of the total litigation cost is borne by the Plaintiff (Appointed Party) and 25% by the Defendant.

3. The above paragraph 1(a) may be provisionally executed.

1. Purport of claim

The defendant paid 20,95,00 won to the Selection Park Jae-sung, 13,906,100 won per annum to the Selection Kim Jong-ju, Kim Jong-ju, Kim Jong-sung, Lee Hong-kin, and Cho Yong-kung, and 16,326,70 won per annum to the plaintiff (appointed party; hereinafter the plaintiff) (appointed party); 12,217,100 won to the Selection-kak, 12,89,80 won to the Selection-kak, 16,771,300 won to the Selection-kak, and each of the above amounts shall be paid at the rate of 25% per annum from the next day of the delivery of a copy of the complaint of this case to the Selection Kim Jong-S, 16,771,300 won to the Selection-kak, and 16,50% per annum from the next day of the service of a copy of the complaint of this case.

2. Purport of appeal

The plaintiff: The part against the plaintiff falling under the following among the judgment of the court of first instance shall be revoked:

The defendant's 19,167,50 won for the Appointors' 19,469,660 won for the Appointors' 17,252,672,340 won for the Selections' 17,252,100 won for the Selections' Huns' Hunss Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns, 8,72,340 won for the plaintiff, 10,642,100 won for the Selections' Huns Huns Huns Huns Huns Hun,57,820 won for the Selections' Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns Huns.

Defendant: Each part of the judgment of the first instance court against Defendant shall be revoked, and all of the Plaintiff’s claims corresponding to that part shall be dismissed.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by comprehensively taking into account all the descriptions of Gap evidence 6-1, 2, 3, 8-1, 2, 9, 10, 11-1, 2, 16-1, 2, 17, 18-1, 2, 19, 20, 22-1 through 7, 9 through 13, 26-1, 26-2, and 11-1, 2 of Gap evidence 6-1, 16-2, 16-2.

(a) Conclusion of civil and joint building contracts;

On September 11, 1998, the so-called So-called the So-called So-called So-called the So-called " So-called So-called Mon Construction Co., Ltd. (hereinafter referred to as the "So-called So-called Mon Construction") entered into a contract for the construction of housing remaining after housing complex and new construction of individual housing (hereinafter referred to as the "joint contract") on the 26 pieces, including the designated parties, and on the 498-7 and 25 parcels, the main contents of which are as follows:

(1) Construction period: from September 1, 1998 to September 10, 1999

(2) Construction cost: 182,00,000 won for the remaining construction cost of housing complex formation, and 2,200,000 won for the construction cost per square meter (each value-added tax separate); and

(3) Predetermined to conclude a contract for construction works for each individual (hereinafter referred to as an "individual contract"): Within 30 days after each of the housing associations and Solar Construction under the joint contract, the agreement shall be prepared in consultation on the construction works for the individual and Solar Construction, and the date and time of commencement shall be determined at the time of the agreement.

(4) The method of paying the construction cost under an individual contract: A pre-paid amount of KRW 5,00,000 shall be paid on the date of commencement, 25% of the total construction cost shall be paid with the first progress payment at the time of completion of the construction project, 50% of the total construction cost shall be paid with the completion payment at the time of completion of the construction project, 30% of the total construction cost due to the second progress payment at the time of completion of the construction project at the time of completion of the construction project at the time of completion of the construction project at the time of completion of the construction project at the 70% (internal unclaimed construction project) and 15% of the total construction cost shall be paid with the completion payment at the time of completion of the construction project at the time of completion of the construction project at the 90% (T

(5) Scope of construction: Electricity and communications construction, and waterworks and sewerage construction (including construction works after first) shall be separately constructed.

B. Conclusion of an individual contract

Pursuant to the above joint contract, the designated parties entered into an individual contract with the defendant who is the de facto manager of Solim General Construction, and the date of each contract, lot number, construction cost (2,00,000 won per square year), and the scheduled date of completion of the contract are as shown in the attached Table for Calculation of Compensation for Delay. The time and method of payment for completed portion shall correspond to the above joint contract, and if the construction is delayed, the amount equivalent to 0.1% of the construction price shall be paid as compensation for delay every day.

(c) Completion of individual construction works;

(1) The Defendant completed the new construction work of each building at the time of the date stated in the separate sheet for calculation of liquidated damages or the date stated in the completion column of the attached sheet and occupied by the selected person or lessee (However, the selected person’s maximum light source occupied on July 20, 200, which was after the completion inspection).

(2) On September 5, 200, the Plaintiff completed each completion inspection on July 5, 200 for the building of the remaining designated parties.

2. Determination

(a) The establishment of liability for payment of liquidated damages;

As seen above, the defendant is a contractor for construction works based on an individual contract and completed the construction with the scheduled date of completion of the contract. Thus, barring any special circumstance, the defendant is obligated to pay liquidated damages according to the agreement for liquidated damages for delay to the designated parties.

In this regard, the defendant asserts that the designated parties will not be subject to value-added tax even though they conclude an individual contract with Solim General Construction, and that the general project owner may execute the construction without reporting the value-added tax in the case of small-scale housing construction project, and the owner is merely stated as the defendant in the form of the above individual contract because the contractor is not subject to value-added tax, and the defendant does not bear the liability for compensation for delay based on the individual contract because the contractor is the solar General Construction. However, although Eul's evidence 1 through 6, Eul's evidence 7-1 to 9, Eul's evidence 1, 2, Eul's evidence 26, Eul's evidence 26, Eul's evidence 31-1, 2, and Eul's evidence 38-1 to 38-9 are insufficient to reverse the above fact that the defendant is the contractor of the individual contract, it is not allowed to accept the above argument of the defendant.

(b) Scope of the liquidated damages;

(1) The amount of the penalty for delay borne by the Defendant to the Appointor shall be the amount calculated by multiplying 0.1% of the construction cost per day during the period from the day following the date of each entry in the order of the scheduled completion date of the agreement in the separate sheet for calculation of the penalty for delay to the date of each entry in the same list or the date of completion of the same list, and each amount in the

(2) Reduction of liquidated damages

(A) Meanwhile, in full view of the facts in which there is no dispute between the parties and evidence Nos. 6-1, 2, 3, 29-1, 2, 37, 38, 39-1, 2, 4-2, 18, 2- Eul evidence Nos. 19-1, 2, 3, 23, 25, 28, 29, 30-2, 35-1 through 74, 43-1, 2, and 43-2, and 1, 37, 38, 39-1, 39-2, 2, 2, and 39-2, 2, 2, and 39-1, 2, and 35-1, 35-1, and 43 of the witness of the court of first instance, the following facts can be acknowledged:

① On April 30, 1998, the housing association contracted the construction of public sewage and drainage facilities for the formation of a housing complex with the construction period from May 10, 1998 to June 20, 198. According to the joint agreement entered into between the relevant housing association and the relevant joint agreement, in the event that the delay in air of pipeline companies, etc. ordered by the relevant housing association causes interference with the progress of construction and construction of a complex, the housing association agreed to assume all the responsibilities therefrom (Article 25 of the terms of the construction agreement). The public sewage and drainage facilities construction of the building without a building has been delayed due to the delay in design change and civil petition, etc.

② Around October 1998, a designated person entered into an individual contract with the Defendant and entered into a design change of a total floor area of 163.92 square meters of a building on November 28, 1998 with a total floor area of 129.79 square meters, but entered into a new individual contract with the Defendant on May 1, 1999, again changed the total floor area into 158.76 square meters, and then entered into a new contract with the Defendant on July 1, 1999, and subsequently, the construction was delayed due to the change of design for extending the 2nd floor (68.69 square meters) again on October 21, 1999. The Plaintiff entered into an individual contract with the Defendant on May 31, 199, but the Plaintiff, among the construction works, decided to extend the 2nd floor by directly constructing it on May 31, 199, but the designated person entered into a construction permit agreement with the Defendant on March 29, 1998.

③ When entering into an individual contract, the designated parties and the Defendant agreed to consult with each other on the specific color, shape, etc. of each building during construction, such as external bricks, bricks, slopings, remote areas, lighting fixtures, etc., but delayed the consultation and delayed construction.

④ As seen earlier, the designated parties agreed to pay the progress payment according to a certain contribution, but failed to perform it properly, and paid the progress payment that was paid in part by dividing it into a small amount, and made it difficult for the Defendant to continue the construction work by paying a considerable portion of the progress payment that was paid before and after the date of occupancy.

(B) In light of the various circumstances delayed in the above construction, the circumstance leading up to the conclusion of an individual contract, and all other circumstances revealed in the arguments, the compensation for delay to be borne by the Defendant shall be limited to 20% of the amount indicated in the column for calculation of the compensation for delay before the reduction of the attached Table, 30% of the selected parties, 30% of the selected parties, and 40% of the remaining designated parties, respectively, and the amount indicated in the column for calculating the compensation for delay in the same list.

(C) According to the construction contract entered into by the designated parties with the Solim General Construction Contract, the Defendant asserts that the designated parties shall pay interest at 2% per month on the accounts payable for the construction work after the completion of the construction, while the designated parties shall not move in and use the building even after the completion of the construction, so that the designated parties may delayed completion of the construction. In light of the above circumstances of the designated parties, the Defendant asserted that the designated parties’ claim for compensation for delay is unjust since the construction was completed in accordance with the scheduled occupancy date of the designated parties.

However, as shown in the above argument by the defendant, it is difficult to believe that some of the testimonys of Eul as shown in the above argument No. 32, the date of the witness examination by the court of first instance, and the date of the witness examination by the court of first instance. The testimony of Eul's evidence No. 35-1 through No. 74, and the testimony of the witness examination by the court of first instance is insufficient to admit the above argument by the defendant, and there is no other evidence to acknowledge it.

3. Conclusion

(3) The defendant shall accept 4,131,00 won and 1,827,50 won and 20% annual interest rate of 0.5% from the day after 200 to the day after 20.5% of the total annual interest rate of 0.5%, 20% of the total annual interest rate of 0.5% from the day after 200 to the day after 20.5% of the total annual interest rate of 0.5%, 3% of the total annual interest rate of 0.5% as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, 40% of the total annual interest rate of 0.5% from the day after 20.5% of the total annual interest rate of 0.5%, 20% of the total annual interest rate of 0.5% from the day after 20.5% of the above judgment, 20% of the total annual interest rate of 0.5% from the day after 20.5% of the above.5%

Judges Lee Ho-won (Presiding Judge)