2017Da438 (st office) Confirmation of the existence of an obligation

2017Da445 (Counterclaim Construction Price)

A

Law Firm Han-chul et al., Counsel for the plaintiff-appellant

Attorney Lee Jae-ho, and Kim Jong-soo

B Stock Company

Attorney Park Jong-il, Counsel for the plaintiff-appellant

Daejeon High Court (Cheongju), 2015Na589 (Main Office), and 2015Na596 (Counterclaim) decided November 29, 2016

May 11, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined that the Plaintiff is liable to compensate the Plaintiff for damages equivalent to the total amount of KRW 96,960,280 (hereinafter referred to as the “Defendant”) and KRW 280 (hereinafter referred to as the “Defendant”) with respect to the defect repair expenses of the instant building, provided that there were several different appraisal results with respect to the same matter, including the appraisal methods, which would be contrary to the empirical rule or unreasonable in light of the legal doctrine that, in principle, the adoption of any of the appraisal results belongs to the discretionary power of the fact-finding court. Among them, the result of the first instance appraiser E’s appraisal of the instant building and the re-appraisal of the lower appraiserJ of the lower court was found.

2. However, we cannot accept the fact-finding and decision of the court below.

A. According to the judgment of the court of first instance and the reasoning and records of the judgment below, the court of first instance, based on the plaintiff's assertion of defect repair expenses claims, etc.: ① there are seven items defects, such as tin works, and the defect repair expenses incurred therefrom are 67,765,432 won in total, and the defendant applied for additional appraisal of the 47 items, such as tin works, and the part that the defendant changed to an agreement with the plaintiff while performing the instant construction works is four items, such as ston and ston, and the construction expenses that were not reduced or required due to such change are 9,496,912 won in total; ② both the plaintiff and the defendant appealed against the judgment of the court of first instance; ③ the plaintiff asserted that the building of this case was more defective than the number of items determined by the judgment of the court of first instance; ④ the fact that the court of first instance applied for additional appraisal of the 47 items, excluding the items recognized as defects or non-construction parts of the construction of this case; ⑤ the court of first instance or 47 parts of this case.

In light of these facts, the appraisal executed by the AppellateJ of the court below is not a re-appraisal of the appraisal subject to the first instance court's annual provision, but a different object of the appraisal.

B. Nevertheless, the court below recognized the defects or non-execution parts of the construction of this case according to the result of the appraisal by the appraiser J of the court below, and did not make a separate judgment on the part acknowledged by the court of first instance as to the plaintiff's claim for defect repair expenses. The plaintiff's ground of appeal to this purport is with merit.

3. Therefore, without examining the Defendant’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Cho Jong-hee

Chief Justice Park Sang-ok