Korea Institute of Marine Science and Technology (before Change: Maritime Plant Plant Research Institute (Attorney Jeong Young-soo et al., Counsel for the plaintiff-appellant)

Construction Financial Cooperative (Law Firm LLC, Attorneys Choi Gyeong-won et al., Counsel for the plaintiff-appellant)

February 26, 2016

Seoul Central District Court Decision 2015Gahap515122 Decided June 3, 2015

1. The defendant's appeal and the claim for return of provisional payment are all dismissed.

2. The appeal costs and the costs of filing an application for the return of provisional payments are all borne by the Defendant.

1. Purport of claim

With respect to the Plaintiff KRW 1,442,061,928 and KRW 100,00,000 among them, the Defendant shall pay to the Plaintiff the amount calculated at the rate of 20% per annum from the day following the delivery of a duplicate of the complaint of this case to the day of full payment, and with respect to KRW 1,342,061,928,00,000 per annum from the day of service of a duplicate of the application for modification of the purport of this case to December 31, 20

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

3. Purport of request for the return of provisional payments;

The plaintiff shall pay to the defendant the amount of KRW 1,574,776,288 and the amount calculated by applying the rate of 5% per annum from June 11, 2015 to the date the judgment of the court of this case is rendered, and 20% per annum from the next day to the date of full payment.

1. Basic facts

(a) Conclusion of a contract;

On August 12, 201, the Korea Marine Research Institute, the Plaintiff’s telegraphic body, entered into a contract for construction (hereinafter “instant contract”) with the Korea Marine Research Institute Co., Ltd., the contractor (hereinafter “Seoul”) for the following construction works (hereinafter “instant contract”) (as seen in paragraph 2 below, the Plaintiff succeeded to the status of the construction contract of the Korea Marine Research Institute upon the establishment of the Korea Marine Research Institute under the Korea Marine Science and Technology Institute Act, and thus, the Plaintiff is indicated as the contractor (hereinafter “Plaintiff”).

1) 공사명 : 500㎾급 용수 시험파력발전소 해상구조물(가로 37.0m × 폭 31.2m × 높이 27.5m) 건설공사

2) Construction site: At the Jeju-si, ○○○○○-ri, △△△-ri, 16 meters in front of the full sea depth of 16 meters;

3) Construction period: From August 18, 201 to August 17, 2012 (amended by April 18, 2013)

4) Contract amount: KRW 7,222,224,250 (the alteration to KRW 7,935,00,000 on February 7, 2013)

(b) Advance payment and letter of guarantee;

The Plaintiff received each advance payment guarantee from the Defendant on August 19, 201 and January 6, 2012, which was issued by the Defendant from the day and around the day as follows. Article 3 of the terms and conditions attached to each of the above guarantees that the Defendant guarantees the amount equivalent to the advance payment to be returned to the guarantee creditor as prescribed by the principal contract within the scope of the guaranteed amount (if there is any unpaid progress payment related to the construction performed by the contractor, the deducted amount). In addition, the Plaintiff was issued a performance bond (the guaranteed amount of KRW 2,88,889,70) issued by the Defendant from the day and around the day.

The second advance payment made on August 19, 201 at the end of 2,17,324,00 on August 16, 2012, the second advance payment made on August 13, 2012, 208,88,000,03,203,301,001, the first advance payment for the guarantee period of KRW 2,16,000,000 as of August 16, 201; the second advance payment made on October 16, 2012; the second payment made on January 6, 2012; the second payment made on January 3, 200, 203; the second payment made on October 3, 200,301; the first payment made on October 16, 2012; and the second payment made on October 30, 201, 30,705,78,7500; and

(c) Payment of progress payments;

The details of the Plaintiff’s payment for the completion of construction works are as follows.

The amount of settlement of accounts for advance payment (won) of the pre-paid amount (cost) as of October 26, 2012, contained in the main sentence of the Table No. 356,430,430,438,470,000 on October 26, 2012, the second time of 876,00,000 on June 3, 2013, 5,670,90,000 on the aggregate of 25,508,072620,491,928,670,003,611,938,072,072,208,48,961,928 on June 3, 2013.

(d) Method of settling accounts of advance payment;

Except as otherwise provided in relevant Acts and subordinate statutes, the instant contract stipulates that the payment of advance payment shall be governed by Chapter 9 of the Guidelines for Government Tender and Contract Execution, which is the Accounting Rules of the Ministry of Strategy and Finance (Article 6 of the Special Conditions for Construction Contract). Article 37 of the above Guidelines for Government Tender and Contract Execution provides for the method of advance payment as follows.

Article 37 (Settlement of Prepaid Funds) of the Table included in the main sentence shall be adjusted at least the amount of the prepaid payment calculated by the following methods at the time of payment for completed portion: The amount of prepaid payment = Amount of prepaid payment x (amount equivalent to the prepaid portion / contract amount)

(e) Completion of construction works;

1) On April 18, 2013, the extended construction period, the instant construction was not completed, and on November 6, 2013, the Plaintiff requested the Plaintiff to suspend the construction on the ground of bad weather. As a result of the feasibility review conducted by the supervision group, the Plaintiff determined that it is inappropriate to implement the instant construction, and filed a claim for a performance bond against the Defendant on November 19, 2013.

2) On January 28, 2014, the Plaintiff sent to the Defendant on January 28, 2014, a notice of the following: “The contract amount of KRW 7,222,224,250, the contract amount of KRW 8,291,505,341 (a design change, etc. based on the price increase, authorization conditions, etc.), KRW 6,864,109,650, advance payment of KRW 5,054,00,000, first installment payment of KRW 1,438,470,00, second installment payment of KRW 620,491,928, advance payment of KRW 1,193,209,650, and the second installment payment of KRW 620,491,928, advance payment of KRW 1,209,650 (No. 21-21-2).”

3) On May 12, 2014, the Plaintiff sent to the Defendant a statement demanding the payment of the advance payment deposit amounting to KRW 1,442,061,928 (i.e., KRW 5,054,00,00 in advance payment - KRW 3,611,938,072) as the advance payment amount, and there is no unpaid advance payment amount to be additionally deducted from the advance payment amounting to KRW 3,61,938,072). Accordingly, on June 28, 2014, the Plaintiff presented a statement demanding the payment of KRW 1,442,061,928 in advance payment amount and its interest 168,336,037 in advance payment amount and KRW 168,36,037 in advance payment amount and KRW 1,193,209,000 in advance payment amount were stated in advance payment amounting to KRW 3,616,000 in advance payment amount remaining.

(f) Implementation of remaining works;

1) In order to prevent safety accidents during the winter season, it is necessary for the Plaintiff to urgently implement Kson’s cson’s care and inspection of private navigational aids among the instant construction works, which have been suspended during the winter season, and thus, requested the Defendant to cooperate with the Defendant, who has been transferred the obligation of Japan upon a performance guarantee claim on November 29, 2013. The Defendant consented to the emergency construction on December 6, 2013. On December 17, 2013, the Plaintiff entered into an emergency construction contract with the Southern Western Construction Co., Ltd., Ltd. and paid KRW 521,50,000 for the settlement of completion on April 10, 2014, and entered into a management service contract with the waiting Marine Co., Ltd. and the contract amount of KRW 33,250,000 for navigational aids at KRW 33,250,000 on January 20, 2014.

2) The Plaintiff publicly announced the tender for the remaining construction works under the Jungdo Section, and entered into the remaining construction contract between the Jungdo Construction Co., Ltd. that became a successful bidder and the construction contract between April 15, 2014 and July 15, 2014 with the construction period from April 15, 2014. The remaining construction works were executed in accordance with the detailed statement of construction commencement prepared based on the application mutatis mutandis of the existing design documents.

[Ground of recognition] Facts without dispute, Gap's 1 through 17, 21 evidence, Eul's 1 evidence (including branch numbers, hereinafter the same) and the purport of the whole pleadings

2. Determination as to the legitimacy of the Plaintiff’s request for correction of a party indication

A. The plaintiff filed the lawsuit in this case and corrected the plaintiff's indication as "Korea Institute of Marine Science and Technology" at the trial. We examine whether the application for the correction of the party indication is not allowed to harm the identity of the party.

B. Parties shall reasonably interpret and confirm the purport of the entire complaint, including the contents and cause of the claim, and where the plaintiff is not deemed to have the capacity to be a party, correction of the indication shall be allowed with the correct party ability recognized as a result of a reasonable interpretation of the purport of the entire complaint (see Supreme Court Decision 98Da1950, Nov. 26, 199, etc.).

However, comprehensively taking account of the facts set forth in paragraph (1) above and the overall purport of oral arguments in Gap evidence Nos. 1, 2, 4, 6, 7 through 14 (including branch numbers) as a contractor, the Korea Institute of Marine Science and Technology, which is a foundation incorporated under the Korea Institute of Marine Science and Technology established under the Korea Institute of Marine Science and Technology Act (amended by Act No. 11145, Dec. 31, 201; hereinafter the same shall apply) and succeeded to all properties, rights, and obligations of the Korea Institute of Marine Science and Technology established under the Korea Institute of Marine Science and Technology as an independent organization of the Korea Institute of Marine Science and Technology (Article 5 through 8 of the Addenda of the Korea Institute of Marine Science and Technology), and the fact that the Korea Institute of Marine Science and Technology established under the Korea Institute of Marine Science and Technology established under the Korea Institute of Marine Science and Technology as an independent organization of the Korea Institute of Marine Science and Technology established under the Korea Institute of Marine Science and Technology established under the Korea Institute of Marine Science and Technology established under the Korea Institute of Marine Science and Technology 2014.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff’s previous indication as the “Korea Marine Plant Research Institute” and corrected it to the “Korea Marine Science and Technology Institute” through the submission of an application for party indication correction should be deemed to have been corrected to the Plaintiff as a juristic person foundation, even though it erroneously indicated the Plaintiff’s internal organization as the Plaintiff, as the Plaintiff’s internal organization, the Korea Marine Plant Research Institute, which

Ultimately, since the original indication and the corrected indication of the plaintiff are within the scope of identity of the parties, the correction of the above indication should be considered to be permitted.

3. The parties' assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

A) In the advance payment method, the meaning of “amount equivalent to the price for the part of the flag” shall be interpreted as the accumulated amount of completedness. Accordingly, when calculating advance payment appropriated for the 1 and 2 installments construction cost at the time of payment of the 1 and 2 times period construction cost, it is as follows: (a) the Plaintiff’s advance payment amount and the amount of pre-paid advance payment column in the table below

B) In a case where a contractor is obliged to settle construction costs due to the rescission of a contract for construction work without completion, barring any special circumstance, such construction costs shall be calculated by applying the agreed construction cost to the agreed construction cost, not immediately deducting the construction costs to be actually incurred in the completion of the unconstruction portion from the agreed total construction cost, but shall be calculated by applying the agreed construction cost to the ratio of the base amount and the construction cost calculated based on the construction cost to be actually incurred or to be incurred in the unconstruction portion. The completed construction cost is the total construction cost to be incurred in the completion of the unconstruction portion (see Supreme Court Decision 200Da4095, Mar. 26, 2003, etc.).

Therefore, on January 28, 2014, KRW 6,864,109,650 (hereinafter “the instant amount”) stated as the amount of progress payment at the time when the Plaintiff notified the Defendant of another Section (hereinafter “the instant amount”) does not mean the final amount of time, but merely means the calculation of the construction cost required for the part of time based on the premise of calculating the amount of time based on the legal principles of the said Supreme Court precedents, based on which the construction cost was based on the premise of calculating the rate of time based on the aforementioned Supreme Court precedents, which is calculated on the basis of the aforementioned Supreme Court precedents (65.39%) in consideration of the emergency construction cost and the remaining construction cost, if the cost of time work is calculated by applying the rate of time high (65.39%) calculated according to the legal principles of the above Supreme Court precedents, the amount of time work does not exceed KRW 5,670,90,000,000 in the aggregate of cumulative examination amounts of KRW 5,670,90,000. Therefore, there is no additional amount of construction payment.

2) The defendant's assertion

A) In the advance payment method, the meaning of “amount equivalent to the price for the part of the flag” shall be interpreted as the amount of the initialness of the next time. Accordingly, when calculating advance payment appropriated for the 1 and 2 installments construction cost at the time of the payment of the 1 and 2 installments, it is as follows: (a) the Defendant’s advance payment amount and the amount of the advance payment indicated in the following table.

B) At the time of the other termination, the Plaintiff confirmed the remaining progress payment amount as KRW 1,193,209,650 at the time of the other termination, and even though the Plaintiff recognized the completion rate of construction work as KRW 81.8% in the related litigation, it cannot be recognized that the Plaintiff calculated the rate of 65.39% by reflecting the follow-up construction cost that the Plaintiff excessively disbursed after the other termination. Therefore, it shall be deemed that KRW 1,193,209,650, which was stated as the progress payment amount at the time of notification to the Defendant on January 28, 2014 at the time of notification to the Defendant of the other termination, refers to the final completed construction cost of the instant construction, and the advance payment would no longer remain if it is deducted from the unpaid balance.

3,611,938,072 won (=5,05,00 won) x [5,670,90,000 won (per cumulative amount) / 7,935,00,00 won (per two times)] 3,914,376,320 won (per two times) / [5,054,00,000 won (pre-paid amount)] / [4,794,90,000 won (pre-paid amount) / 7,22,24,250 won (pre-paid amount) / 876,00 won (pre-paid amount) - 360,00 won (pre-paid amount), 360,000 won (pre-paid amount), - 40,000 won (pre-paid amount per three times), - 76,000 won (pre-paid amount per one time) - 630,5040,2050

B. Determination

1) As to the method of advance payment

A) Considering that advance payment received in the contract for construction works is part of the construction work that the contractor pays to the contractor in advance for the smooth progress of construction works, not for the specific advance payment (see, e.g., Supreme Court Decision 9Da5519, Dec. 7, 199). ② Under the principle, advance payment is calculated by dividing the amount at a fixed rate of 301Da1386, Sept. 4, 2002; ② it can be deemed that the advance payment rate of 100,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000).

B) As to the above, the Defendant concluded a guarantee agreement of each of the instant advance payments with the contract amount of the instant construction works as KRW 7,222,224,250, which is its original contract amount, during the first period of time. As such, if the advance payment is calculated by applying the cumulative contractual rate based on the increased contract amount ( KRW 7,935,00,00), it would be contrary to the language of Article 37 of the Standards for Public Tender and Contract Execution, which provides that advance payment shall be calculated at each time of advance payment, and would be unreasonable for the Defendant, who is the insurer of the advance payment, to give unexpected disadvantage to the Defendant. However, Article 37 of the Standards for Public Tender and Contract Execution only provides that the advance payment amount calculated by the contract amount of the instant advance payment 】 (i.e., the equivalent amount to the advance payment / the contract amount) / (ii) / (iii) e.g., the agreed amount of the contract amount to be adjusted within each of the above agreed terms and conditions or the agreed amount.

2) As to the unpaid claim for construction cost

A) Legal principles as to the calculation of the unpaid claim for construction payment

(1) In the event that a contractor is obliged to settle construction costs due to the rescission of a construction contract without completion of the construction work and the settlement of construction costs due to the completed construction work, the method of calculating the completed height would be as follows: ① the construction cost actually spent in the already completed part, ② the amount calculated by deducting the construction cost actually incurred in the completion of the non-construction part from the agreed total construction cost, ③ the amount applying the agreed total construction cost to the agreed construction cost. However, in the case of ① the contractor’s payment of the necessary cost, the contractor’s payment of the total amount would lead to the result that the contractor is obliged to pay the cost in advance; ② the price increase after the cancellation of the contract; or ② the contractor’s payment of the cost higher than the necessary cost of the non-construction part would be unreasonable, and thus, in general, the contractor would suffer disadvantage. Therefore, in accordance with the legal principles of the above Supreme Court Decision 200Da40995 Decided 3rd in accordance

(2) However, such a legal doctrine is not a mandatory legal nature, but a special agreement exists between the parties on the calculation of the base amount or a special circumstance exists to determine the contractor’s expense in a direct manner.

B) Determination

(1) According to the reasoning of the judgment below, it is reasonable to find that the Plaintiff’s agreement was 1,193,209,650 won (i.e., 6,864,650 won - 5,670,900 won for the fixed construction cost) at the time of notification of other Section 28 of January 28, 2014; (ii) the Plaintiff’s agreement on the reimbursement of the fixed construction cost was 0.0 won for the fixed construction cost under Section 20; (iii) the Plaintiff’s agreement on the reimbursement of the fixed construction cost was 10,00 won for the fixed construction cost under Section 40; and (iv) the Plaintiff’s agreement on the reimbursement of the fixed construction cost was 0,000 won for the fixed construction cost under Section 28 of the fixed construction cost; and (v) the Plaintiff’s agreement on the reimbursement of the fixed construction cost was 10,000 won for the fixed construction cost under Section 28 of the fixed construction cost.

(2) 그런데 원고가 동절기 중의 안전사고 방지를 위하여 일경이 중단한 이 사건 공사 중 케이슨 속 채움 및 사설항로표지 점검공사를 긴급히 시행할 필요가 있어 2013. 11. 29. 공사이행보증 청구에 따라 일경의 의무를 이양받은 피고에게 협조를 요청하였고, 피고가 2013. 12. 6. 긴급공사 진행에 동의한 사실, 이에 원고가 2013. 12. 17. 남서종합건설 주식회사와 케이슨 모래투입 긴급공사계약을 체결하고 2014. 4. 10.경 준공정산금 521,500,000원을 지급하였으며, 2014. 1. 20. 대기해양 주식회사와 계약금액 33,250,000원으로 한 사설항로표지 위탁관리 용역계약을 체결한 사실, 원고가 중도타절에 따른 잔여공사에 관한 입찰을 공고하고, 낙찰자가 된 정인종합건설 주식회사와 2014. 4. 1. 공사기간 2014. 4. 15.부터 2014. 7. 15.까지, 계약금액 3,079,000,000원으로 하는 잔여공사계약을 체결하였으며, 위 잔여공사는 기존 설계도서를 준용하여 이를 기초로 작성된 착공내역서에 따라 시공이 이루어진 사실은 앞서 제1항에서 살펴 본 바와 같고, 여기에 위 긴급공사가 이 사건 공사의 원활한 진행 및 완성에 필수적이었다고 보이고, 잔여공사비가 합리적인 범위를 초과하여 과다하게 산정되었다거나 이 사건 공사 외에 별도의 추가공사를 위하여 지출되는 것이라고 볼 자료가 없는 점 등을 더하여 살펴보면, 위 긴급공사비 및 잔여공사비는 ‘미시공 부분을 완성하는 데 소요될 공사비’로서 기성고 비율 산정에서 고려하는 것이 타당하다. 한편 위 2014. 1. 28.자 타절 내역 통보의 ‘타절기성금액’은 완성(기성) 부분의 공사비를 원가계산방식에 의하여 산정한 금액이므로 완성된 부분에 소요된 공사비로서 미시공 부분을 완성하는 데 소요될 공사비와 함께 기성고 비율 산식에서 전체 공사비를 이루게 된다. 따라서 위 2014. 1. 28.자 타절 내역 통보 당시 기성고 비율은 65.39%[= 타절기성금액 6,864,109,650원 / {(타절기성금액 6,864,109,650원 + 긴급공사비 합계 554,750,000원(= 521,500,000원 + 33,250,000원) + 잔여공사비 3,079,000,000원)}] 정도로 산정되고 이를 적용한 기성공사대금은 5,421,815,342원(= 타절공사금액 8,291,505,341원 × 기성고 비율 65.39%)으로서 제1, 2회 누적 기성검사액 합계 5,670,900,000원(= 선금정산액 3,611,938,072원 + 1회 기성지급액 1,438,470,000원 + 2회 기성지급액 620,491,928원)에 미치지 못하므로, 미정산 선금잔액에서 공제될 미지급 기성대금은 존재하지 아니한다.

(3) Ultimately, the Defendant’s above assertion premised on the existence of KRW 1,193,209,650 of the accrued amount which is not deducted from the unpaid balance is without merit.

3) Sub-decisions

Therefore, as a result of the performance of advance payment guarantee contract, the Defendant is obligated to pay to the Plaintiff the amount of KRW 1,442,061,928 in advance and KRW 100,000,000 in advance filed by the instant complaint from August 1, 2014, which is the day following the day when the duplicate of the instant complaint was served. As to KRW 1,342,061,928, which is the claimed amount expanded through the application for modification of the purport of the instant complaint as of December 31, 2014, the Defendant is obligated to pay damages for delay at a rate of 20% per annum from January 6, 2015 to the day when the duplicate of the application for modification of the above purport of the instant claim is served.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and the defendant's claim for the return of provisional payment is also sought the return of provisional payment according to the above judgment of the court of first instance and is dismissed as it is without merit. It is so decided as per Disposition.

Judges fixed-term (Presiding Judge) and fixed-term training of judges;