2015 Gohap515276 Other (money)

1. B and C under joint management of the rehabilitation debtor A corporation;

2. D Co., Ltd.

3. Stock company E.

Plaintiffs LLC LLC (LLC)

[Defendant-Appellee]

Attorney Go Han-hee, Counsel for the plaintiff-appellant

Korea

December 9, 2016

February 10, 2017

1. The defendant shall pay to the plaintiffs 698,902,437 won and 200,000,000 won among them, 6% per annum from September 5, 2014 to March 30, 2015; 15% per annum from the next day to the day of full payment; and 498,902,337 won with 15% per annum from May 4, 2016 to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. On December 28, 2010, the Plaintiffs, a company whose business purpose is to engage in civil engineering and building business, entered into a contract for construction work in the form of a long-term long-term contract (hereinafter referred to as “instant contract”) with the Defendant for which the former Act on Contracts to Which the State was a Party (amended by Act No. 1137, Mar. 21, 201; hereinafter referred to as “the former Enforcement Decree of the State Contracts Act”) was entered into between December 28, 2010 to December 31, 2011; the total construction period is 730 days; and the contract amount is 4,215,94,000 won; the total construction period is 207 billion won; hereinafter referred to as “the former Enforcement Decree of the State Contracts Act”) and the former Enforcement Decree of the State Contracts Act with the State as a Party (amended by Act No. 11377, Mar. 21, 2012; hereinafter the same shall apply).

B. The Plaintiffs commenced the instant construction project on December 28, 2010. Ultimately, the construction period was extended to the extent that it was originally planned and completed on April 30, 2014. In that process, the Plaintiffs and the Defendant concluded each of the instant construction contracts as stated in the instant construction contract modification statement on April 2, 2014 (hereinafter referred to as “each of the instant contracts by number of teas,” “each of the instant contracts by number of teas,” “general contract,” and “each of the instant contracts by number of teas,” respectively.

C. On December 29, 201 (the first and fifth contracts), July 9, 2012 (the second and second contracts), June 25, 2013 (the third and third contracts) and September 5, 2014 (the fourth and fifth contracts) respectively were paid to the Plaintiffs.

D. On June 3, 2013, April 3, 2014, June 2014, June 2014, June 24, 2014, and October 14, 2014, the Plaintiffs filed an application for the adjustment of the contract amount with the purport to request the Defendant to increase the amount of indirect construction cost incurred due to the construction period extended up to each other.

【Ground of recognition】 The fact that there has been no dispute, Gap's entries in Gap's 1, 3, 4, 7, 16 through 21 (including each number, hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiffs' assertion

Due to a cause not attributable to the Plaintiffs, the total construction period in the instant case was extended from December 28, 2010 to December 26, 2012 to 490 days from December 28, 2010 to April 30, 2014. Accordingly, during the extended construction period, the Plaintiffs spent indirect construction costs of KRW 698,902,437 in total due to indirect labor costs, expenses, general management expenses, etc. In addition, since the Plaintiffs requested the Defendant to adjust the contract price under Article 66 of the former Enforcement Decree of the State Contracts Act, the contract price in the instant case should be increased to the above amount. The Defendant is obligated to pay the said additional construction cost to the Plaintiffs.

3. Determination

(a) Occurrence of indirect construction cost claims;

1) Relationship between a long-term continuing construction contract and an overall contract by vehicle number

As seen above, Article 21 of the former State Contracts Act provides that "the head of each central government agency or the public official in charge of contracts may conclude a long-term continuing contract within the scope of the budget of each fiscal year, as prescribed by Presidential Decree, with respect to a contract that needs to continue to exist for several years, such as lease, transportation, storage, gas, or water supply, or that requires several years to be implemented. In such cases, a long-term continuing construction contract shall be implemented within the scope of the budget of each fiscal year." Article 69 (2) of the former Enforcement Decree of the State Contracts Act provides that "long-term continuing construction contract shall be additionally stated in the total cost determined by the successful bid, etc. and shall be entered into the first construction contract within the scope of the budget of the fiscal year." In this case, a contract after the second construction contract (referring to the adjusted total cost where the contract price under Articles 64 through 66 is adjusted) with an additional statement within the scope of the amount calculated by deducting the amount already contracted." Article 50 (3) provides that "long-term continuing construction contract shall be paid at least 16 percent of the total contract price."

In full view of the purport and purpose of the above relevant provisions, the characteristics of a long-term continuing contract known thereby, and the fact that the Defendant entered into the first contract and a general contract with the Plaintiffs, which additionally states the total construction period and the total construction cost, within the scope of the amount calculated by deducting the amount already contracted from the total construction cost stated each fiscal year from the total construction cost stated each fiscal year, the total construction period and the total construction cost entered into a contract with the Plaintiffs are binding between the parties to the contract, and the following contracts are binding within the scope of the budget of each fiscal year as they are bound by the contents of the general contract.

2) Adjustment of contract amount due to the extension of construction period in long-term continuing construction projects

Article 19 of the former State Contracts Act and Article 66 of the Enforcement Decree of the same Act stipulate the contract price adjustment in cases where the terms and conditions of the contract are modified, and do not exclude the application of long-term continuing construction contracts. Thus, in cases of long-term continuing construction, if it is necessary to adjust the contract price due to the extension of the construction period,

However, a long-term continuing construction project has a characteristic of settling accounts after entering into a contract and performing a long-term continuing construction project by dividing the total construction period by number of vehicles, and due to these characteristics, an extension of a long-term continuing construction project takes place in various forms, such as extension of the total construction period, extension of the total construction period, extension of the construction period by number of vehicles, extension of the construction period by number of vehicles, etc. Therefore, in such various cases, it may be problematic when the contract price adjustment

In light of the fact that the overall contract in a long-term continuing construction project as seen earlier and the purpose, relationship, and contents of a contract by number of vehicles, in particular, a long-term continuing construction project is divided by number of vehicles, and the contract price is settled after performing the entire construction project, it shall be deemed as a principle that the contract price adjustment due to the extension of the construction period is made within a long-term continuing construction project.

However, since the scope or contents of contracts, such as construction volume and construction period, are limited to the part to be performed in the relevant number of vehicles during the total construction period, the adjustment of the contract amount due to the extension of the total construction period not included in the scope or contents of contracts by number of vehicles cannot be made through the amendment of the relevant number of vehicles. Ultimately, the contract amount adjustment should be made through the amendment of the relevant overall contract. From this perspective, in a case where the total construction period in a long-term continuing construction plan overlaps with the amendment of the contract by number of vehicles, i.e., where the total construction period in a long-term continuing construction plan overlaps with the change of the contract period by number of vehicles, if the total construction period is changed due to the change of the contract period by number of vehicles, the adjustment of the contract amount due to the change of the total construction period shall be made through the process of performing the contracts by number of vehicles and the adjustment of the contract amount by the number of vehicles. Moreover, it is reasonable to deem that the fixed payment is not subject to the adjustment of contract amount in terms of trust protection of the parties (see Supreme Court Decision 2004Da2825).

However, if the total construction period is not modified and the total construction period is extended in excess of the extended construction period by the number of vehicles, such as the case where the total construction period is extended without being modified and the total construction period is extended in excess of the extended construction period by the number of vehicles, the change of the construction period cannot be adjusted through the contract price adjustment procedure by the number of vehicles, and thus, the contract price adjustment procedure due to the extension of the construction period by the overall contract cannot be reflected in the change of the construction period. In this case, the application for adjustment of the contract price can be deemed to have been made before the final payment of the general contract was received

3) In the instant case:

A) Grounds for extending the construction period of the instant case

In full view of the purport of Gap evidence Nos. 4, 12 and 16 and the whole arguments, with respect to each of the changes entered into by the original and the defendant with respect to the contract whose contents are extension of the construction period, the defendant's notice of change of the construction contract shall be changed by the needs of the ordering agency, extension of the construction period by allocation of the budget (the comprehensive contract dated November 13, 2012), the design and the field different, and the subsequent work of the production and installation of exhibits and the installation of facilities shall be carried out in line with each other (the total three times of October 7, 2013 and the four times of change). The change of the construction period of the above 3rd contract shall be separately stated in the 14th change of the construction site and the 2th change of the construction period (the 2th change of the construction site and the 14th change of the construction site) and the 14th change of the construction site (the 2th change of the construction site).

Therefore, in light of each of the above facts, it is determined that the extension of the construction period of this case was wholly attributable to the reasons attributable to the Defendant, such as design errors, and lack of budget. Thus, barring any special circumstance, the Plaintiffs may claim to the Defendant for the adjustment of the contract amount equivalent to the indirect construction cost due to the extension of construction period, pursuant to Article 19 of the former State Contracts Act and Article 66

The defendant asserts that, before the occurrence of the relevant problem, the extension of the construction period due to the omission of volume, design error, and the difference in the field conditions, etc. is caused by the plaintiffs' neglect of duty and responsibility to reflect the design omission and error in the construction plan by adjusting the work plan from time to time prior to the occurrence of the relevant problem, and thoroughly examining the design drawing, etc. at the time of commencement of construction work, and recognizing them in advance, the plaintiffs are not entitled to claim indirect construction costs with respect to the portion of which the construction period is extended according to the above reasons. However, there is no ground or evidence to acknowledge that the plaintiffs have the duty to review

B) Parts that overlap with the extension of contract by number of vehicles

Attached Table 2. According to the Statement on the Details of the instant construction contract, the period of the instant total construction contract extended pursuant to each general contract (490 days from December 27, 2012 to April 30, 2014) for 150 days from December 27, 2012 to May 25, 2013 is due to the extension of the contract period by the third number of vehicles. The period of the instant construction contract for 212 days from October 1, 2013 to April 30, 2014 is due to the extension of the contract period by the fourth number of vehicles. Accordingly, the contract amount for the instant total construction contract for the period from December 27, 2012 to April 30, 2014 (490 days to April 30, 2014) should have been received prior to the receipt of the equivalent price by each number of vehicles, and the contract amount for the instant total contract shall have been adjusted by 1362 days prior to the receipt of the instant total contract.

However, on June 25, 2013, the Defendant paid the Plaintiffs for the completion of the contract by the third and third number of vehicles, and paid the completion cost of the contract by the fifth and fifth number of vehicles on September 5, 2014, and the Plaintiffs filed an application for the adjustment of the contract amount with the content of requesting the Defendant to increase the additional cost of indirect construction incurred due to the extended construction period by each time until October 14, 2014, as acknowledged earlier. As such, the Plaintiffs may claim for the payment of the total amount of indirect construction cost for the construction period extended under each of the instant overall contracts.

C) Sub-determination

Therefore, barring special circumstances, the Defendant is obligated to pay indirect construction costs for the period from December 27, 2012 to April 30, 2014, for which the Plaintiffs seek during the instant construction period extended to the Plaintiffs.

B. Judgment on the defendant's argument

1) Claim that indirect construction cost incurred by extension of the construction period is included in the contract amount

The Defendant asserts to the effect that all of the additional indirect construction costs were paid through each general contract of this case and each change contract of the number of vehicles. As such, this is examined.

In light of the fact that the contract price for each type of car is set within the scope of total construction cost in a long-term continuing construction project as seen earlier, to accept the Defendant’s assertion, it should be recognized that the total construction cost of this case was increased considering the indirect construction cost incurred by extension of construction period.

According to Gap evidence Nos. 4, 16, and Eul evidence Nos. 2 and Eul evidence Nos. 4, 16, and Eul evidence Nos. 2, each of the following changes related to the instant construction contract stated that an indirect construction cost shall be additionally incurred due to design modification in the design modification reason statement submitted by the plaintiffs in relation to the two-time modified contract, which is the only modified contract whose total construction cost is to be increased. The fact that the plaintiff and the defendant entered into two-time modified contracts, including the above amount, is recognized.

However, in full view of the evidence and the purport of the entire pleadings as seen earlier, the above-mentioned modified contract contains only the increase of the contract amount due to a design modification without changing the total construction period, and the fact that the indirect construction cost stated in the above reason for the reason for the design modification is an indirect construction cost that is calculated at a certain contribution rate and is linked to the direct construction cost increased due to a design modification. In light of such fact, it is insufficient to recognize that the above-mentioned increased total construction cost is reflected in the increased total construction cost, and there is no other evidence to support it. Accordingly, the defendant's above assertion is not acceptable.

2) The plaintiffs' assertion that they renounced their right to claim additional indirect construction costs

The defendant asserts to the effect that the plaintiffs renounced their right to demand additional construction costs due to extension of the construction period due to the agreement to modify the contents of the construction contract without any increase or decrease of the construction price, and failing to raise any objection thereto.

A waiver of a claim may be recognized by the interpretation of an obligee’s act or expression of intent, as well as by the express expression of intent. However, in such a case, the obligee’s act or expression of intent should be strictly interpreted according to the content of the pertinent legal relationship (see, e.g., Supreme Court Decision 86Meu1907, 1908, Mar. 24, 1987).

However, at the time of concluding each modified contract for the extension of the construction period of this case by only the written evidence Nos. 4 and 16, it is insufficient to view that the Plaintiffs and the Defendant included the additional indirect construction cost in the subject of consultation, or that the Plaintiffs expressed their intent to waive the indirect construction cost claim during the process of concluding the modified contract, and there is no other evidence to acknowledge this otherwise. Accordingly, the Defendant’s

C. Scope of indirect construction cost

According to the appraisal results and the purport of the entire arguments by appraiser H, indirect construction costs incurred during the construction extension period (490 days from December 27, 2012 to April 30, 2014) of the instant case can be acknowledged as constituting a total of 698,902,437, as stated in the Additional Construction Costs Table 3.

Of the other expenses claimed by the plaintiffs, there is doubt as to whether the item of the employee fuel expenses among the other expenses claimed by the plaintiffs is used for the construction of this case, and it is not known whether the plaintiffs could perform any work during the period where the construction was not implemented due to the defendant's budgetary problems, and as the ratio of profit items for 9.85% to the calculation of profit items for 9.85% to the construction site is excessive ratio not reflecting the contractor's efforts to reduce actual costs, the above appraisal result calculated by reflecting the above contents should not be accepted.

However, in light of the fact that the amount of the appraisal result above is the amount derived from the reasonable drilling process after collecting all the data from the appraiser appointed by this court using professional knowledge and verifying and analyzing them by using professional knowledge, the above appraiser's determination of its validity based on the materials submitted by the plaintiff and recognized expenses for the oil substitute and the above input manpower as indirect construction cost, and it cannot be viewed as a significant unreasonable judgment that can dismiss the appraisal result that calculated the profit of 9.85% according to the rate according to the standards for the execution of government bidding contract. Since there is no evidence to acknowledge it differently, the above argument by the defendant cannot be accepted

D. Sub-committee

Therefore, with respect to the above KRW 698,902,437 and the above KRW 2100,000 (the claimed amount at the time of filing the suit), the Defendant is obligated to pay damages for delay calculated at the annual rate of 15% per annum as stipulated in the Commercial Act from September 5, 2014 to March 30, 2015, which is obviously a delivery date of a copy of the complaint of this case, from September 5, 2014 to March 30, 2015, and as to damages for delay calculated at the rate of 15% per annum as stipulated in the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the day of complete payment (the claimed amount expanded due to amendments to the purport of this case), as to the remaining KRW 498,902,337 (the due to amendments to the purport of this case), after the completion date of the construction of the construction of this case, which is the next day after the delivery date of the application for modification of the claim of this case.

3. Conclusion

Thus, the plaintiffs' claims are reasonable and acceptable.

The presiding judge, judge and vice-chairperson

Judge Min-young

Judges Kim Gin-ho

1) In the case of B and C, the joint management agent of the Plaintiff Debtor A and the parties to the contract are not directly related to A and the aforementioned rehabilitation procedure prior to the rehabilitation procedure and the instant issues, so the parties to the contract do not distinguish the two.

2) Although the completion date under the final modified contract is indicated as May 15, 2014, it is merely a formal contract based on the circumstances of the original and the Defendant, and the actual completion date is April 30, 2014.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.