[Defendant-Appellant] Plaintiff (Law Firm SPE Construction, Attorneys Lee Jong-tae et al., Counsel for defendant-appellant)

Hyundai Construction Co., Ltd. (Law Firm LLC, Attorneys Kim Nam-ho et al., Counsel for the plaintiff-appellant)

September 15, 2015

Seoul Central District Court Decision 2014Gahap4281 Decided October 1, 2014

1. The judgment of the first instance court is modified according to the expansion of the purport of the claim in the plaintiff's trial as follows.

A. The defendant shall pay to the plaintiff 2,790,359,706 won and 1,890,729,256 won per annum from July 1, 2013 to October 1, 2014; 20% per annum from the following day to the date of full payment; 89,630,450 won per annum from June 10 to October 27, 2015 to the date of full payment; and 6% per annum from the following day to the date of full payment; and 20% per annum from the following day to the date of full payment.

B. The plaintiff's remaining claims are dismissed.

2. 1/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

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

1. Purport of claim

With respect to the Plaintiff KRW 3,480,764,398 and the amount of KRW 2,578,932,266 among them, the Defendant shall pay 6% per annum from July 1, 2013 to the service date of a duplicate of the instant complaint; 20% per annum from the following day to the date of full payment; and 901,832,132 won per annum from August 28, 2014 to the date of delivery of a duplicate of the application for modification of the purport and cause of the claim from August 18, 2015 to May 18, 2015; and 6% per annum from the following day to the date of full payment (the Plaintiff extended its purport in the trial).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 688,203,010 won with 6% per annum from July 1, 2013 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

Defendant: The part against the Defendant among the judgment of the first instance court is revoked, and the Plaintiff’s claim corresponding to the above revocation is dismissed.

1. Facts of recognition;

(a) The contractual relationship between the Plaintiff and the Defendant with respect to the new construction project of Busan International Financial Center Complex;

1) On May 10, 2010, the Defendant: (a) formed a joint supply and demand organization with KCC Construction and New East Asia Construction Co., Ltd.; and (b) received a contract from the Busan Food and Drug Center Construction Co., Ltd. for a new construction project at the first stage of Busan International Financial Center Complex Development Project (hereinafter “Non-Industrial Complex”); and (c) on August 2010, EEEX Construction Co., Ltd. (hereinafter “EE”) succeeded to the Newdong Construction Co., Ltd. and participated in the said joint supply and demand organization. A contract was formulated between the contracting authority and the joint supply and demand organization with respect to Busan Construction Co., Ltd. (hereinafter “Co., Ltd.”).

Article 2 of the Terms and Conditions of the Contract for Construction Work as of May 10, 2010 included in the main sentence, ① A contractor shall be a joint contractor, and the manager shall be the defendant. ② Notice between the contractor and the contractor shall be the defendant in charge, and the subcontractor shall be deemed to have paid the whole contractor when the contractor pays the payment for the completed payment and the construction cost, etc. to the defendant. Article 2 of the Second Change Contract as of April 19, 2013

2) As to the operation of the above joint supply and demand organization, a written agreement with the joint supply and demand organization with the following content (hereinafter referred to as the “joint supply and demand organization agreement”) was concluded:

3. General Provisions of Chapter 1: Joint supply and demand of the parties concerned; 2. Joint supply and demand of the parties concerned shall be joint investment, joint distribution, and joint liability in accordance with their respective shares; 4. The defendant shall represent members to the order-holder and shall be responsible for all measures necessary for the smooth implementation of the construction work until such time as the rights and obligations to the order-holder are completed. (b) Members shall have the share of the construction as follows; 30% EE 10% (hereinafter omitted) and 4. The advance payment and progress payment for the order-holder shall not be made within the limit of 7. The parties concerned shall not be required to pay the balance at the time of request by the defendant for the payment of the remaining portion of the construction work at the latest by the date of request. The defendant shall not be required to pay the outstanding portion of the construction work at the latest within the limit of 8. The defendant shall not be required to pay the outstanding portion of the construction work at the time of request by each of the parties concerned within the limit of 10 days after receipt of the amount of each request.

B. The contractual relationship between the Plaintiff and the Defendant with respect to the construction work

1) On December 31, 2010, the Defendant: (a) concluded a joint supply and demand agreement with EE, Co., Ltd., Co., Ltd.; and (b) entered into a contract for construction works for the lease-type project of degree course facilities in the Daegu Metropolitan City (hereinafter “Tgu Construction”); and (c) entered into a contract that includes the following (hereinafter “Tgu Construction Contract”).

(2) Upon receipt of an application under paragraph (1), a project operator shall make a lump sum payment to the defendant, and the defendant shall pay to each member of the joint contractor within ten days the full amount of the application by each member of the joint contractor: Provided, That where it is deemed that the execution of the project in this case is impeded, such as a default on payment, bankruptcy, commencement of corporate rehabilitation, or delay on at least two occasions without any justifiable reason, the project operator shall make a direct payment to the defendant of the deadline for payment to be made to the members of the joint contractor.

2) On August 23, 201, with respect to the operation of the above joint supply and demand contractors, the agreement was concluded between the joint supply and demand contractors with the following terms and conditions (hereinafter “Tgu Construction Agreement”).

Article 3 (Members of Joint Supply and Demand Company) (2) of the attached Table included in the main sentence. (3) The defendant shall represent the joint supply and demand company to the project owner and the third party, and have the authority to manage the property of the joint supply and demand company and to make a claim for the payment thereof, etc.

C. The Defendant’s failure to pay for the construction work and the Plaintiff’s joint contributions unpaid.

1) In relation to the Busan Corporation, the Defendant received payment for the completed portion for April of the same year from the ordering authority on June 21, 2013, and the Defendant did not pay 688,203,010 won corresponding to the EE’s share to EE from among them to EE. As of June 2013, EE did not pay 193,612,818 won out of the common contributions for February of the same year, and 763,267,059 won, total amount of 956,879,8777 won.

2) In relation to Daegu Corporation, the Defendant received 32,056,200,000 for the portion paid in May of the same year from the ordering authority on June 20, 2013, and paid 3,205,620,000 won equivalent to the portion paid in EE among them, and paid 3,205,620,000 won for the portion paid in EE. E-EX was not paid in E-EX. E-EX did not pay 569,642,82, 1,023,82,82, 82, and 1,023,821,408,408, and 1,136,128,95, and 1,314,890,7444 won for the portion paid in February 2013.

(d) Decision on commencing rehabilitation procedures and report on rehabilitation claims;

1) On May 8, 2013, EEX was decided to commence rehabilitation procedures as Seoul Central District Court 2013 Mahap85, and the Plaintiff (Plaintiff: Nonparty 1) who is the representative director of EE is the manager and filed the instant lawsuit as Plaintiff 1).

2) The Defendant, as the representative of the joint contractors, reported as rehabilitation claims the joint contribution claim for SPE in relation to Busan and Daegu construction.

(e) Completion of construction and additional progress payment;

Upon completion of the Daegu Construction Works on April 30, 2014, the Defendant received the remainder payment from the ordering authority on August 27, 2014. The Defendant did not pay KRW 21,066,760,000 equivalent to the shares of EE from the progress payment on June 2013, and EEX did not pay KRW 18,983,353,49 for the portion of June 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5 through 11, 25, Eul evidence Nos. 1 through 9, 19, and the purport of the whole pleadings

2. Determination as to the cause of action

In light of the above facts, the Defendant is obligated to pay to the Plaintiff the unpaid payment of KRW 688,203,010 for the portion paid in April 2013 and the delay damages therefor, and KRW 1,890,729,256 for the portion paid in May 2013 (= KRW 3,205,620, KRW 00 - KRW 1,314,890,744 for the portion paid in May 2013), and KRW 2,083,406,50 for the portion paid in June 2013 for the portion paid in Busan Corporation (=21,06, KRW 760,00 for the portion paid in June 18,98, KRW 353,499), and any delay damages therefrom.

3. Judgment on the defendant's assertion

A. Summary of the defendant's assertion

1) As to Busan Corporation

Based on Articles 7(d) and 8(c) and (d) of Chapter IV of the Busan Construction Convention, the Defendant deducted the progress payment from 688,203,010 won for April 16, 2013 by EE-ray from 956,879,877 won for the month of February of 3, 2013, the Defendant terminated the Plaintiff’s claim for the completion payment for the Busan Construction Work against the Defendant.

2) As to Daegu Corporation

A) The proviso of Article 2(2) of the Daegu Contract for Construction Works does not expressly stipulate the payment of progress payment to the Plaintiff, a joint contractor, in the event that an application for commencement of rehabilitation procedures is filed by a member of the joint contractor. Therefore, the Defendant is not obliged to pay progress payment for the members of the joint contractor

B) The plaintiff's claim for the payment for completed portion, which is a member of a joint contractor having the nature of a partnership under the Civil Act, constitutes a claim for division of the partnership's property, which shall be filed after the joint contractor is dissolved and the liquidation work is terminated. Since the joint contractor for Daegu Construction is still in existence and the liquidation work is not completed, the plaintiff'

C) Even if the Plaintiff’s claim is deemed as a claim for distribution of profits, in light of the following: (a) the proviso of Article 2(2) of the Daegu Construction Contract; (b) Article 10 of the Daegu Construction Project Convention; (c) the details of the draft Operating Agreement concluded between the joint supply and demand contractors; and (b) the circumstances in which the Defendant actually deducted unpaid contributions and paid progress contributions; and (c) the joint supply and demand contractors paid unpaid contributions; (b) the express operational agreement was concluded to allow the Plaintiff to deposit only the remaining amount after deducting unpaid contributions from the progress payment to be paid to the members; and (c) the Plaintiff’s progress payment for May 2013 against the Defendant was entirely deducted from the unpaid contributions.

B. Relevant legal principles

A construction joint subcontractor basically has the nature of a partnership under the Civil Act (see, e.g., Supreme Court Decision 9Da49620, Dec. 12, 2000); and even if a partner of a construction joint subcontractor fails to perform his/her investment obligation, it is not expelled from the partnership on the ground that the partner's failure to perform his/her investment obligation, as long as the partner's failure to perform his/her investment obligation is not expelled from the partnership, the partnership can set directly against the partner's right to claim distribution of profits with the investment claim, its overdue interest claim, and other damage claim; and in contrast to the partnership agreement, the partnership agreement does not have a special agreement that directly connects the performance and distribution of profits (see, e.g., Supreme Court Decision 2005Da16959, Aug. 25, 2006).

C. Judgment on the argument on Busan Corporation

1) As seen earlier, Articles 3, 7 (d), 8 (c) and (d) of Chapter IV of the Busan Construction Convention provide that the Defendant shall deduct the unpaid contributions from the progress payment to be paid to the pertinent members in case the members of the joint supply and demand organization fail to pay the shared contributions, and that the Defendant’s claim for the contributions to EE shall be based on the Defendant’s failure to pay the unpaid contributions, and the claim for the portion for the portion for which EEE has the nature of the profit distribution claim.

In light of the aforementioned facts in light of the legal principles as seen earlier, the provisions of the Busan Construction Convention agreed to deduct without a separate offset intention. Under the said provisions, the Defendant may deduct the unpaid contributions from the construction cost to be paid to EXE without a separate offset intention. Therefore, it is lawful that the Defendant deducts the same amount from the payment for completed portion of 688,203,010 on April 16, 2013 of E-2013, the payment for completed portion of 688,203,010 from the payment for completed portion of E-E on April 16, 2013, and the Defendant’s payment for completed portion of E-E’s unpaid contributions on March and March of 2

2) On this issue, the plaintiff should interpret the above provision of the Busan Construction Convention as a set-off, notwithstanding its language and text, and in light of the purport of the Debtor Rehabilitation and Bankruptcy Act (hereinafter "the Debtor Rehabilitation Act"), the defendant's assertion against the limitation on the exercise of the right of set-off by rehabilitation creditors under the above Act shall not be permitted. ② The defendant's claim against EE-ray's claim against the defendant for a progress payment or the defendant's claim for a joint contribution to E-E-EX is an individual claim or obligation, and it does not constitute an association's property or a partnership's obligation, and thus the legal principles on the association cannot be applied. ③ The defendant reported a joint contribution claim against E-E-ray as a rehabilitation claim, which is only able to

A) According to the above legal doctrine, the above provisions in the Busan Construction Contract constitute a special agreement that directly connects the performance of the investment obligation and the distribution of profits as stipulated in the association agreement. It is reasonable to view that the said provisions terminated on an equal amount at the time of the offset without being subject to the restriction on the time of exercising the right of offset under Article 144(1) of the Debtor Rehabilitation Act, and without being subject to the Defendant’s separate indication of offset intent. Moreover, it is difficult to view that the parties agreed to enter into an agreement prior to the commencement of the rehabilitation procedure for EEX’s application for commencement of the rehabilitation procedure, and that it is a provision that

B) The claim for the construction cost against the contractor in the Busan Construction Contract is a partnership claim, and the individual members of the joint contractor cannot directly claim or request a division against the contractor, as seen earlier. The plaintiff's claim against the contractor against the contractor is based on the Busan Construction Contract and is distinguishable from the claim against the contractor. Thus, the plaintiff's assertion that the legal principles of the association of this case should not be applied on the premise that EXE shall have an individual claim for the construction cost based on the contract with the contractor is not applicable.

C) According to the Debtor Rehabilitation Act, when it is decided to authorize the rehabilitation plan, the rights of rehabilitation creditors, etc. are modified according to the rehabilitation plan (Article 252(1)), and entry in the table of rehabilitation creditors or the table of rehabilitation secured creditors on any right recognized by the rehabilitation plan based on any rehabilitation claim or rehabilitation security right has the same effect as the final judgment at the time the decision to authorize the rehabilitation plan becomes final and conclusive (Article 255(1)). Here, the term "the same effect as the final and conclusive judgment" has the same effect as the final and conclusive judgment, not res judicata but as a confirmative effect, in the reorganization proceedings inside the reorganization proceedings (see, e.g., Supreme Court Decision 2004Da3512, 3529, Aug. 20, 204). The Defendant's obligation to pay the progress payment after April 2013 to the Plaintiff at the stage when the Defendant received the progress payment from the contractor (the Plaintiff's claim for the progress payment is in the form of a right to claim profit distribution, and at least the Defendant's report on the rehabilitation claim amount as the rehabilitation claim.

3) Therefore, the Plaintiff’s claim for payment for completed portion against the Defendant is without merit.

D. Determination on the assertion on Daegu Corporation

1) The proviso of Article 2(2) of the Daegu Construction Contract provides that when a member of a joint contractor applies for the commencement of rehabilitation procedures, the contractor shall pay the progress payment to the Defendant directly to the members of the joint contractor. Since the Defendant’s obligation to pay the progress payment to the members of the joint contractor is not exempted, the Defendant’s assertion that the Defendant’s obligation to pay the progress payment for EN does not exist on the basis of the above provision

2) According to Article 2 (2) of the Daegu Construction Contract, a contractor shall pay the full amount of the application to the defendant when the defendant requests the payment of the progress payment, and the defendant shall pay it to the members of the joint contractor within 10 days. This is distinguished from the right to claim the distribution of the remaining property arising from the dissolution of the partnership, and as long as the joint contractor plans the claim for the distribution of profits prior to the liquidation procedures as an agreement, the exercise of the right to claim the distribution of profits shall be possible prior to the dissolution and liquidation of the partnership. Therefore, the defendant's assertion that the request for the progress payment by the Es

3) As to the Defendant’s assertion that EEE’s claim for payment for completed portion was extinguished by deducting from unpaid shares.

A) A claim for payment for completed portion against the Defendant of EXE constitutes a claim for distribution of profits. In accordance with the legal principles as seen earlier, the Defendant is only able to offset the charge claim of EXE against EXE only when it is in the offset form, and the Defendant cannot refuse the distribution of profits on the ground of non-performance of the investment obligation, unless there is a special agreement that directly connects the performance of the investment obligation and the distribution of profits. We examine the existence of the above special agreement among the joint supply and demand companies with respect to Daegu Corporation.

B) The Defendant asserts to the effect that Article 2 of the Daegu Construction Contract and Article 10 of the Daegu Construction Contract constitutes the above special agreement. However, Article 2 of the above contract is deemed to be exempted from liability if the payment of the payment for the completed portion of the members of the joint venture is made to the Defendant who is the representative of the joint venture, and it does not constitute a provision that connects the distribution of profits among the members of the joint venture with the payment for the completed portion of the joint venture. In the case of Article 10 of the above contract, it is clear in its text that the payment for the completed portion of the joint venture falls under the provisions concerning the settlement of losses and profits after offsetting the respective investment performance and the distribution of profits, and it does not constitute a provision that connects the investment performance

C) The Defendant asserts that the draft of the joint supply and demand agreement containing the above special agreement between the joint supply and demand contractors (hereinafter “the draft of the operation agreement”) was prepared, and that the unpaid contributions of the joint supply and demand contractors have been deducted in advance from the payment for the completed portion under the above agreement.

(1) If Gap evidence Nos. 26, 38 through 42, Eul evidence Nos. 19, 20 to 21, 25 to 26, 30-1, 3, 31, and 35 to 36 are collected, the following facts may be acknowledged:

① With respect to Daegu Construction, the Defendant prepared a draft agreement on the operation of joint supply and demand (No. 20) including the following matters, in note 2):

2. The period of application of this Convention, the General Provisions of Chapter 1 of the Draft Operating Convention, contained in the main text: The date of application shall enter into force from the date of the date of establishment of the site, and the period of application shall retroactively apply to the date of establishment of the site and shall terminate after the completion of the last work: Provided, That this Convention shall remain in force, provided that the project owner or a third party has a duty to pay the rights related to the project (such as repair, etc.). Chapter 4 Funds and Accounting Management 7. The joint consignee who has received a claim for the contributions shall pay the contributions to the designated unit of the representative by no later than the 25th day of the following month (if the 25th day of business suspension is a bank, by the previous business day).

② Although a meeting of the Working Committee on Joint Contract was held several times with respect to the draft of the above Operating Agreement, there was no agreement on the notice and deduction of contributions related to Chapter IV, the order of industrial accident insurance management, etc. on August 23, 201 of the draft Operating Agreement. On August 23, 2011, a joint contractor drafted the “Tgu Construction Agreement” in the foregoing Recognizing the remainder of the contents, except for the details of the “ Chapter IV Funds and Accounting Management” in the draft Operating Agreement.

③ On July 6, 2012 and September 18, 2012, when the Defendant continuously holds the working committee for joint contract even thereafter, sent an e-mail to the members of the joint supply and demand organization, and sent the draft operation agreement to the effect that it would be deemed that there is no reply within the given time limit, and that there is no reply within the said time limit. However, as regards the draft, the Defendant did not affix the seal between the joint supply and demand organization, even until the withdrawal of the joint supply and demand organization by EXE (as of May 1, 2013) and the commencement decision of rehabilitation.

④ On May 1, 2013, the Plaintiff withdrawn from a joint supply and demand organization for Daegu Corporation and transferred the shares of the remaining construction works to another member.

⑤ On the other hand, on September 6, 2012, the Defendant sent to EE a notice of offset disposition that the unpaid contributions and the amount of the arrears at the three-base site will be paid after offsetting the contributions. On November 12, 2012 and December 27, 2012, the Defendant notified EE that the unpaid contributions and the amount of the arrears will be paid after offsetting the amount of the contributions (0 won) at the five-year progress payment (No. 26 evidence No. 1 and 4).

(6) On May 6, 2013, the Defendant sent a notice of payment for partial completion and a notice of offset disposition to Hanyang Co., Ltd., a joint contractor. According to the above, the payment for partial completion was added to other sites, and the unpaid contributions are indicated as follows: “The contributions in December 2012, January 2013, and February 2013,” and “the contributions in February 2013,” which are set-off and paid in February 2013. The Hanyang Co., Ltd. presented different opinions on the execution of the self-paid contributions, including the deduction of contributions in the draft of the Operating Convention. The first vice Co., Ltd. presented another opinion from the working committee on June 28, 2011. Nonparty 3 Co., Ltd. did not have any difference in the purport that “the Defendant did not have any difference in the current status and amount of the contributions when the Defendant would deduct and deposit only the remaining amount of the contributions, request the deduction prior notice prior to the disposal of the contributions, and the remaining contributions paid in itself.”

7. On September 6, 2013, the Defendant sent notice to the Cheongjin Construction Co., Ltd., a joint contractor, to the effect that the payment for the completed portion and the unpaid contributions would be offset.

(2) In light of the following circumstances known in the above recognition, namely, ① the working committee was held several times to prepare the operation agreement, but the agreement is not concluded as proposed in the operation agreement. On August 23, 2011, when one year and eight months have elapsed since the conclusion of the contract for the Daegu Construction Project, the “Tgu Construction Agreement” was concluded solely with the remainder except for the portion of Chapter IV Funds and Accounting Management” in the above draft, and ② the seal of the members of the joint supply and demand organization under Article 2 of the draft operation agreement is stipulated as the requirement for effective enforcement, it shall be deemed that the members of the joint supply and demand organization did not raise an objection in writing, or that the above draft became effective without the seal of the joint supply and demand organization, and it shall not be deemed that the said draft has reached the said draft without the consent of the members of the joint supply and demand organization, ③ the meeting minutes of August 26, 2013, the Defendant still transferred the right to enter into the agreement with the members of the KE 1, which appears to have been effective after the agreement on the portion of the above draft 2.

(3) The Defendant asserted that only the order of industrial accident disposal among the draft of the operation agreement as mentioned above was agreed upon, and that the remaining portion was paid after the unpaid contributions were deducted from the completion payment. However, the Defendant notified EEE and KTE to offset the unpaid contributions and the interest on delay from the progress payment and paid only the balance as mentioned above. However, the above notice only included the progress payment in the construction site other than the Daegu Construction Work, or included the unpaid contributions in the other construction site other than the progress payment (which means the GTTTTT's GTT's GTTT base site), and it is difficult to view that the Defendant’s notification of the remaining portion and the remaining portion were made in accordance with the agreement to offset the unpaid contributions in accordance with the above operation agreement, and it is more reasonable to view that the Defendant’s notification of the remaining portion and the remaining portion were made in accordance with the agreement to offset the unpaid contributions to the KTTTTTTTTT and other joint supply and supply companies. However, it is more reasonable to view that the Defendant’s notification of the remaining portion and the remaining portion were not effective after the agreement to offset.

D) Therefore, the defendant's assertion that the payment for completed portion was extinguished in full on the premise that there was a special agreement or agreement between the defendant and the joint contractor that the payment for completed portion should be deducted from the unpaid share of the joint contractor.

4) As to the Defendant’s payment for the completed portion of Daegu Construction Works

A) The amount of unpaid progress payment for May and June 2013 by the Plaintiff

(1) As seen in the grounds of the above claim, the progress payment for the Daegu Construction Project that the Plaintiff is obliged to receive from the Defendant, the progress payment for the 1,890,729,256 won for the 5th May, 2013, and the 10th day after the date when the Defendant received the above progress payment from the ordering authority, and the progress payment for the 2,083,406,501 won for the 6th June 2013, and the damages for delay from September 7, 2014, respectively (the Defendant asserts that the right to claim the payment for the progress payment for the 2,083,406,501 won for the 2,013th day after September 7, 2014 as the obligation for which the Plaintiff’s right to claim the payment for the progress payment for the 2,000 won has not been determined by the ordering authority, and it cannot be viewed that it differs depending on whether the members of the joint supply and demand authority have been decided).

(2) The Defendant asserted that, from the claim for progress payment for February or April 2013, 2013, the amount of unpaid contributions for 2,729,593,285 won (2,642,682 won for February 5, 209 + KRW 1,023,821,408 for March + KRW 1,023,821,40 for April 1,30,136,128,995 for five months was deducted from the claim for progress payment for February or April 2013. However, the Defendant’s argument that, as seen earlier, even if the Defendant’s assertion is deemed to have expressed his/her intention to offset the Defendant’s claim for the portion paid for the rehabilitation claim for the debtor after the commencement of rehabilitation procedures, it cannot be deemed that the Defendant’s claim for late payment was naturally deducted from the Plaintiff’s claim for the portion paid for progress payment for the period of February or April 2013.

B) The Plaintiff’s intent of offsetting

The Plaintiff bears the Defendant’s obligation of KRW 601,850,457 as the principal and interest due to the final and conclusive judgment of Seoul Central District Court 2013Gahap91875, ② the obligation of KRW 135,100,127 for the first cash rehabilitation claim in 2014; ③ the obligation of KRW 7,09,406 for the final and conclusive judgment of Seoul Central District Court 2013Gahap91875, ③ the Plaintiff’s obligation of KRW 7,09,406 for the above obligation as the automatic obligation of June 1, 2013; ② the obligation of KRW 201,850 for the Defendant’s obligation as the 2015da 2015, 2015, 3065, 3065, 207, 2015 for the remainder of the obligation as the Defendant’s obligation, and thus, there is no dispute between the Plaintiff’s remaining parties.

C) Plaintiff’s appropriation for repayment

The Defendant’s repayment of KRW 500,492,482 to the Plaintiff on June 9, 2015 is without dispute between the parties. The Plaintiff asserts that the Plaintiff is liable to pay damages for delay from August 28, 2014 to June 9, 2015 for delay damages of KRW 62,968,103 (i.e., KRW 339,356,51 x 0.06 x 0.06 x below KRW 286/365, and KRW 437,524,379 (= KRW 500,492, 482 -62,968,103) to the Plaintiff on June 28, 2013; and that the Defendant is liable to pay damages for delay from June 28, 2014 to June 9, 2015.

In light of the Plaintiff’s appropriation method, 500,492,482 won is calculated based on the Plaintiff’s appropriation method. 500,492 won is paid for the six-month payment, and 539,356,51 won is paid for the six-month payment from September 7, 2014 to June 9, 2015, 60,766,421 won (i.e., KRW 1,339,356,511 x 0.06 x 276/365, 726, 061 won is paid for the above-month payment, 500,492, 500,492, 492, 628, 511 won is paid for the delayed payment, but the Plaintiff’s remaining repayment damages are appropriated for 60,761,3615 won and 296.36,196,3165 won and 164.65).

D) Sub-determination

Therefore, as to the Plaintiff KRW 2,790,359,706 (i.e., KRW 1,890,729,256 + KRW 899,630,450) and KRW 1,890,729,256 for the progress payment for May 1, 2013; (ii) from July 1, 2013 to the date of the first instance judgment where it is deemed reasonable to dispute as to the existence and scope of the Defendant’s obligation to perform; (iii) 6% per annum under the Commercial Act until October 1, 2014; (iv) 20% per annum from the following day to the date of full payment; (v) 89,630,450 per annum from June 10, 2013 to the date of full payment; and (v) 20% per annum from the date of the second instance judgment to the date of full payment; and (v) 20% per annum from the date of the first instance judgment where the Defendant is liable.

4. Conclusion

Therefore, the plaintiff's claim is reasonable within the above scope of recognition and the remaining claims are dismissed as it is without merit, and the judgment of the court of first instance is modified following the plaintiff's extension of claims in the trial court. It is so decided as per Disposition.

Judges Park Jung-hwa (Presiding Judge)

Note 1) The indication of the parties to the instant case and the judgment of the first instance court are written as “legal administrator”.

2) While the Defendant asserted that the draft operational agreement was drafted around December 31, 2010, the date of preparation is only 2011, and the second joint contract working committee on the draft of this operational agreement was held on April 27, 2011, this draft seems to have been drafted from the beginning of December 2011 to April 27, 2011.

Note 3) Chapter 4 of Chapter 8(b) of the Draft Operating Convention attached to e-mail was partially amended in the expression, but the basic content of “payment of progress payment after a prior deduction of unpaid contributions” is same (No. 30-1, 2).

Note 4) The order of appropriation for interest and principal, the interest rate shall be as sought by the Plaintiff, and no less favorable to the Defendant.