1. Of the part concerning the principal lawsuit in the judgment of the court of first instance, the Plaintiff (Counterclaim Defendant) who falls under the following amount ordering payment.

1. The reasoning of this court concerning this part of the facts of recognition is the same as that of “1. Basic Facts” in the judgment of the court of first instance, and thus, this part is cited by the main sentence of Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The Plaintiff’s assertion that the instant construction contract was rescinded by the Defendant on December 19, 2014 due to the Defendant’s failure to reply to the schedule of the on-site inspection.

However, even if it is not so, after the defendant decided to settle the construction price through an appraisal and assessment, the defendant requested only the payment of the price when refusing the plaintiff's request for goods confirmation, and the court of first instance disposed of all facilities manufactured under the contract of this case to a third party during the continuation of the first instance trial. This is because the defendant clearly expressed his/her intent to refuse performance or the defendant's obligation becomes impossible to perform, and thus, the contract of this case is rescinded by the service of preparatory documents dated February 2, 2018

Therefore, the defendant is obligated to return 5750,000 won of the construction cost already received as the restoration to the plaintiff.

B. Where a contractual obligor clearly expresses his/her intent not to perform a contract, the obligee may rescind the contract or claim damages against the obligor on the ground of the obligor’s non-performance refusal without the obligor’s notice of performance under the principle of good faith.

In this case, whether an obligor clearly expresses his/her intention not to perform the contract should be determined by comprehensively examining the behavior of the parties and the detailed circumstances before and after the contract.

(See Supreme Court Decision 2004Da53173 Decided August 19, 2005, etc.). Then, the Defendant filed a counterclaim against the Plaintiff seeking the performance of the instant construction contract by failing to perform the Plaintiff’s duty of cooperation, and the Plaintiff was also unable to perform the instant construction contract. This was premised on the validity of the instant construction contract. Nevertheless, the Defendant continued to exist in the first instance court.