(영문) 서울서부지방법원 2015. 1. 15. 선고 2014가합895 제14민사부 판결

1) The Defendant was awarded a contract for construction of the first section and the second section and the second section and the second section and the second section and second section of the building site in the front of the Daegu Southern Metropolitan City Road (hereinafter referred to as the “each of the above construction works”), among the construction of private investment facilities in the first section and the second section and each of the above construction works is called the “construction works in the first section and the second section and each of the above construction works in the second section).

2) The Plaintiff is a company that solely or jointly subcontracted each of the instant construction works from the Defendant.

(b) Conclusion of a subcontract for construction works;

1) The instant construction section 1

A) On January 2, 2009, the Plaintiff, along with Youngjin Construction Co., Ltd., was awarded a subcontract by the Defendant for the instant construction project with the construction cost of KRW 30,250,000,000 and the construction period from January 2, 2009 to October 31, 2012.

2) Section 2-2 Construction Works of the instant case

A) Around September 7, 2009, the Plaintiff was awarded a subcontract with the Defendant for the instant Section 2-2 construction amounting to KRW 23,786,793,800 and the construction period from September 7, 2009 to September 30, 2012.

3) Amendment to each construction contract

Since then, each construction contract was modified twice or three times as follows, and finally, December 21, 2012, each of the instant construction contract was amended to KRW 44,977,900,000 in the construction cost, and the instant construction project was amended to February 15, 2013 in the construction cost, 28,710,647,90 in the construction cost, and each of the instant construction works was amended to February 15, 2013 in the construction cost.

Until December 23, 2012, December 2013, 2012, 201-2 Section 2-2 Section 2, until December 19, 2012, 31, 710, 710, 647, 900 won and December 23, 2012, until December 23, 2013, 2012, 19,879,900 won and KRW 900 until December 23, 2012, 2012.

1) The Plaintiff demanded the Defendant to increase the additional construction price in addition to the construction price under the above modified contract, but the Defendant rejected this request and caused disputes over the construction price between the Plaintiff and the Defendant.

2) On December 16, 2012, the Plaintiff and the Defendant agreed to resolve the issue of additional construction cost arising in connection with each of the above subcontracting projects through arbitration. On January 16, 2013, the Plaintiff filed an application with the Korea Commercial Arbitration Board for arbitration seeking payment of KRW 5,718,365,959 for additional construction cost against the Defendant.

3) On December 12, 2013, the Korean Commercial Arbitration Board partially accepted the above arbitration application, and rendered an arbitral award stating that the Defendant shall pay the Plaintiff KRW 280,846,426 and the damages for delay thereof.

4) On February 25, 2014, the Plaintiff filed a lawsuit for setting aside an arbitral award under the Seoul Central District Court Decision 2014Gahap10231 that the said arbitral award was unlawful to deal with a dispute not subject to the arbitration agreement, and was rendered a judgment against the Plaintiff on June 18, 2014.

5) The Plaintiff dissatisfied with the above judgment and appealed on July 21, 2014, and the present case is currently pending in Seoul High Court 2014Na34326.

(d) Defendant's proposal for a reduction of construction period, etc.;

1) On March 20, 2013, when the above arbitration application case was pending, the Defendant issued a work order, namely, “patch construction equipment, materials, and personnel inputs,” to the Plaintiff (hereinafter referred to as “the instant work order”), and made the following proposals based on March 15, 2013.

(O) As of March 15, 2013, the Plaintiff shall reflect the remaining contractual quantity and the cost of the repair (e.g., amnesty, cleaning, and other) inputs on the remaining contractual quantity as of April 10, 2013, subject to the condition that it will be completed as of April 10, 2013, on the remaining contractual quantity, regardless of the outcome of the KIG as of March 15, 2013. However, the Plaintiff shall actively inputs the equipment, the number of persons, materials, and the number of persons to be invested, excluding the amount of progress payment and the cost of the repair of defects, and shall start up with the completion of the construction on April 10, 2013. The remaining contractual quantity and the amount of the remainder of the OO contracts and the cost of the repair of defects, which the Plaintiff will first process and settle the additional inputs in the future. The foregoing matters should be completed as of

2) On May 15, 2013, the Plaintiff completed each of the instant construction works.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 9, Eul evidence Nos. 1, 9 (including each of the around 1, 2, and 9), the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff's assertion

1) The Defendant, via the instant work instruction, agreed to pay to the Plaintiff the full amount added to each of the above works, in addition to the remaining contract volume, when the Plaintiff completed the instant remaining work by April 10, 2013.

2) Meanwhile, the Plaintiff completed the instant remaining construction work on May 15, 2013, when the completion date of construction stipulated in the instant work instruction, but the Plaintiff failed to comply with the work completion date stipulated in the instant work instruction was based on the Defendant’s obligation, such as the Defendant’s additional work instruction and work alteration instruction. Therefore, the Plaintiff should be deemed to have complied with the work completion date stipulated in the instant work instruction.

3) Therefore, the Defendant is liable to pay to the Plaintiff KRW 1,366,038,613, which is the construction cost additionally invested by the Plaintiff in the remaining construction work of this case, and damages for delay.

B. Defendant’s assertion

1) The construction cost that the Defendant had to pay to the Plaintiff via the instant work instruction refers not to the total cost incurred in the remainder of the instant work, but to the cost incurred by the Plaintiff by having the Plaintiff work performed at night or on holidays to complete the construction by April 10, 2013.

2) Meanwhile, the Plaintiff was unable to complete the remaining construction work in the instant case within April 10, 2013, which was the construction completion date stated in the instant work order, and thus, the Plaintiff cannot claim the right in accordance with the instant work order.

3. Determination

A. Interpretation of the work order of this case

As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable counter-proof as to the denial of the contents stated therein. In a case where there is any difference in the interpretation of a contract between the parties and the interpretation of the intent of the parties indicated in the disposal document is at issue, the court shall reasonably interpret the document in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and circumstance of the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decisions 94Da1601, Feb. 10, 1995; 97Da5060, Dec. 12, 199

Therefore, within April 10, 2013, the instant work order provides that the Plaintiff shall bear the remaining contract quantity and defect repair (e.g., face-to-face repair, cleaning, and other expenses) and that the Defendant shall bear with respect to equipment, personnel and materials except for the foregoing, as mentioned above. The following circumstances are as follows: (a) the Defendant shall consider the entire arguments in the evidence Nos. 23 and No. 5; (b) the construction period of private investment facilities, including each of the instant works, from Daegu Metropolitan City, Daegu Metropolitan City, to the Plaintiff at the time of construction of the instant 4th cycle of Daegu Metropolitan City, including each of the instant works, was extended to 30.4, 30; and (c) the Plaintiff and the Defendant, on March 6, 2013, as to the remaining construction period of the instant work order, were to be extended to 9% of the construction period of the instant construction works; and (d) the Defendant shall be deemed to have agreed on the remaining construction period of the instant work order to the Plaintiff within 9.

B. Whether the conditions are fulfilled

1) On May 15, 2013, the Plaintiff’s completion of each of the instant construction works, including the remaining construction works in the instant case, around April 10, 2013, as set forth in the instant work instruction, is as seen earlier.

2) As to this, the Plaintiff asserts that the Plaintiff’s failure to comply with the above work completion period is due to the Defendant’s additional work and order for work change as stated in the attached list, and that the Defendant interferes with the Defendant’s fulfillment of its conditions.

Comprehensively taking account of the respective descriptions in Gap evidence Nos. 4, 9, 10, and 22 (including each serial number, if any), and the overall purport of the pleadings in Gap’s testimony, the facts that the defendant sent the instant work paper to the plaintiff through the written work paper as alleged by the plaintiff, and that the defendant ordered the additional work or the change of work in the attached list, as alleged by the plaintiff, can be acknowledged.

However, the following circumstances, which can be acknowledged by comprehensively taking account of the overall purport of arguments in Eul evidence Nos. 24, 25, and 27 through 29 (including each number, if any), witness A, and witness B’s testimony, are as follows: ① Order for work change issued by the defendant to the plaintiff to the plaintiff is to complete construction before April 30, 2013, which is the construction completion period of entire private investment facilities, as follows: order for work change was made by the defendant to reduce the air; order for additional construction by the defendant does not seem to have increased the plaintiff’s construction period excessively; ② Order for work to the plaintiff is not to instruct a new construction at that time, but to have completed a prior consultation with the plaintiff or completed construction; it is deemed that it was prepared in accordance with the plaintiff’s construction progress; and thus, the defendant interfered with the fulfillment of the terms and conditions as of the date of the work order by the defendant only based on the date of the work order written by the defendant.

In light of the fact that the remaining construction works of this case must be completed around May 15, 2013, which was about 45 days from April 10, 2013, which was stipulated in the instant work order, the Plaintiff cannot be readily determined. In light of the above facts alone, it cannot be said that there is a specific proof as to how the actual construction period was delayed due to the Defendant’s above additional work instruction or work change instruction, and whether the Defendant could have complied with the deadline for completion presented by the Defendant without such delay. Therefore, the Plaintiff’s claim of this case on the premise that the Defendant interfered with the Plaintiff’s fulfillment of conditions is groundless.

(A) responsibility for delay in the installation of a snV or horizontal drainage hole;

Although the Plaintiff asserts that the period of the SP-A works implemented by the Plaintiff had been extended due to the parallel work, such as the Defendant’s prior construction of the packing hole in the relevant section, even after the completion of the construction works, it appears that the MAP-C2 works were completed around March 30, 2013, and that the subsequent construction works performed by the Defendant (the installation of the SP-A-A-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U

Meanwhile, on April 2013, the Defendant’s order to additionally construct a horizontal drain hole for reinforcement of the theft amnestys of the sections of the RAPM-A and C2, which were omitted on January 30, 2012, may be acknowledged (the Defendant is merely changing the location of 138 holes in the sections of the RAPM-C1, which were omitted on January 30, 2012, and there is no change in the construction volume. However, in light of the time of omission or the location of the horizontal drain hole newly installed, there is no evidence to know about how the construction period has been delayed, etc.

B) Ad hoc construction instruction for L-type survey equipment

The Plaintiff: (a) around March 15, 2013, the Plaintiff on the sections RAP Cl and C2, where the Amnesty was created by the Defendant;

Exclusion B, L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type reinforcement around March 2013.However, the defendant demanded L-type L-type reinforcement-type L-type L-type L-type L-type L-type L-type L-type L-type L-type L-type reinforcement

The plaintiff determined that the above waterway work was not performed by the plaintiff, but ordered the plaintiff to revise the plan to waive the above construction work again. However, it seems that the defendant received a request from the plaintiff for changing the construction work of the portion of the RAP Cl and C2, which includes the above waterway work, and notified the plaintiff that it is impossible after reviewing it. It does not mean that the plaintiff and the defendant determined that the above construction work was not performed by the plaintiff (On the other hand, the construction work related to this part is likely to be chaind due to the delay of the plaintiff's RAP-A Amnesty, which is delayed annually due to the delay of the plaintiff's RAP-A Amnesty).

D)the direction for the modification of the arrangement of crossing pipes;

On March 11, 2013, the Plaintiff ordered the Plaintiff to change the arrangement of the crossing drainage pipe from D 100 square meters to D 600 square meters in order to change the arrangement of the crossing drainage pipe from D 100 square meters to D 600 square meters in order to change it again on March 20, 2013. However, the Defendant ordered the Plaintiff to change the arrangement of the crossing drainage pipe from D 600 square meters to D 600.2 square meters prior to the delivery of the instant work order, and the construction period has been delayed due to the delay in the construction work. Thus, it cannot be said that the construction period has been delayed.

E) Change of L/S-type L/S entry

The Plaintiff asserts that the construction period was delayed by ordering L1 to perform L2, namely, a L2, which does not comply with the results of the geological survey of each of the instant construction sections, through the work instruction on April 6, 2013. However, when the Plaintiff’s amnesty and outdoor common ditch was delayed, the Defendant ordered L1 to alter L1 measuring instruments into L2 and construct them into a mechanical studio in order to reduce air, and then the work order on April 6, 2013 is deemed to have been written. Thus, it cannot be said that the construction period was delayed.

t) Instructions for the change of V-type L2/0 to L-type L2/0

The Plaintiff notified the Defendant that there was a design error in conflict with the floor plan (V) and crosssection (L-type side) in the section from the management entry road MaMPB. However, the Defendant asserted that the construction period had been delayed by changing it to a L-type plane through the work order around April 6, 2013. However, even though a V-type Gu was established in the said section, the Defendant did not deem that the construction period had been delayed by changing it to a L-type side, namely, a V-type Gu was installed in the following section, but the Defendant was limited to supervision and supervision for the reduction of the construction period, and it was deemed that the Defendant changed the V-type plane to a L-type measuring instrument, and the Defendant was to install a final drainage pipe. Accordingly, it cannot be said that the construction period has been delayed.

g) Additional U-type survey direction for construction in the Section B of the Pakistan (TYPE-5)

The Plaintiff asserted that, immediately before or after April 10, 2013, the completion date stipulated in the instant work order, the construction period was extended by ordering the Plaintiff to perform U-type U-type construction in the said section. However, although the said section was reflected in the design since each of the instant construction contracts, the said section was reflected in the design, but it was stated in the work order due to the reason that it was omitted in the details of the subcontract.

However, it does not seem to be an additional construction instruction.

(h)the direction for additional construction of drainage pipes in the sections RAP A of Pakistan.

The Plaintiff asserts that the construction period has been extended due to the Defendant’s above work order, on April 6, 2013, that the construction method itself was a method of constructing a specific drainage pipe in a way that only L1 only constructs a specific drainage pipe. In the case of a specific drainage pipe, the Plaintiff asserts that the construction period has been extended due to the Defendant’s above work order.

However, it is not deemed that the Defendant ordered the Plaintiff to perform the additional construction of a drainage pipe or the construction period is extended due to the fact that the central separation cost is required in the Section A of the Pakistan, and that the integrated revision is connected to the final distribution pipe, and that earth and sand works, including the final distribution pipe for the above section of the Plaintiff, might have been completed around March 26, 2013, prior to the preparation of the work order.

(i)an order for additional construction of L2 counterparts and to perform the main construction of the Gu, i.e., the main construction of the Gu, in the sections of the PDAP-D and the Pakistan-B.

The Plaintiff asserted that the construction period was delayed by ordering L2 to perform additional construction of L2 parts between the ICIC RAP D and the ICP B B B on April 6, 2013. However, it cannot be said that the construction period was delayed due to the delay of construction due to the fact that the Defendant’s additional construction of L2 parts between the ICP D and the ICP B is the place within the original construction scope. Meanwhile, in the case of the ladu approach, it cannot be said that the Defendant was ordered to perform additional construction on April 6, 2013 as the place within the original construction scope of the Plaintiff.

(j) Management entry roads Ma1, Ma2

Although the Defendant received a request from the Plaintiff for a review on the entry roads of business establishment Ma1 and Ma2 sections from the Plaintiff on October 2012, it can be recognized that the Defendant instructed work on this part through the work instruction issued on April 6, 2013. However, there is no evidence to know how the work period has been delayed.

k)Freshing of pits (merchants and pan-owneds);

The plaintiff asserts that the defendant had a U-type measuring instrument that was not reflected in the design of the above section, and that the period of official approval was delayed by ordering the additional construction of U-type thorium through the work instruction as of April 29, 2013.

The design drawings at the time of each of the instant construction contracts did not have a U-type measuring instrument for the said sections. However, in light of the fact that the Plaintiff and the Defendant agreed to install a U-type measuring instrument in the said sections at the request of supervision during the construction process, and the Defendant appears to have changed the above U-type U-type plium to install a pro-type U-type plium for the term of construction works, i.e., the said U-type plium for the term of construction works. In addition, it cannot be said that the construction period has been delayed. Meanwhile, solely on the ground that the Defendant ordered the above work through the work instruction as of April 29, 2013, which had already been over the period prescribed in the instant work instruction, the Defendant cannot be readily concluded that the Plaintiff failed to comply with the construction period due to the Defendant’s fault.

(l) utility tunnels lids and utility tunnels;

The Plaintiff asserted that the construction period was delayed by ordering the discontinuance of work until the completion of work by the construction company, although it was scheduled to complete construction of the utility tunnel lids and walls on April 6, 2013.

According to the above evidence, around April 6, 2013, the remaining construction schedule prepared by the Plaintiff was scheduled to complete construction of a utility tunnel lids and a utility tunnel wall, and the Defendant may recognize the fact that the Plaintiff requested the suspension of construction for the purpose of electricity and facility construction in the utility tunnel, but there is no evidence to know how the construction period has been delayed.

(m) the back of the pit retaining wall of the pit;

The plaintiff asserts that the construction period was delayed due to delay in the selection of the construction company with respect to the amnesty in sections 1 and 32 of the defendant's RAMP-CI and C2, and that the construction was delayed due to delay in construction of the above items executed by the plaintiff, which is a subsequent process, due to interference with the work of packing works, etc. accompanied by the waterway construction.

However, as seen in the above (A) and (c) above, the delay in the above construction is attributable to the delay of the Plaintiff’s theft sub-construction, and the Plaintiff appears to have been liable for the construction of the Do road. In light of the fact that the delay in the above construction is attributable to the Plaintiff’s construction of the Do road, it cannot be deemed as the Defendant.

n) Manyman Award of the wastewater treatment plant

The Plaintiff asserts that, according to the work order dated April 11, 2013, the construction period was delayed by ordering the Defendant to additionally construct the manman height of the sewage treatment facility whose construction has been completed as originally designed. However, in the case of the above construction, there is no evidence to know how much the construction period has been delayed.

o) pit parts of the pit, U-type measuring instruments (merchants,

The plaintiff asserts that in order to execute the above process, construction of the cross-section should be prior to the execution of the cross-section, but the construction of the cross-section has been delayed until April 5, 2013 due to the delay in the defendant's decision.

However, the delay of the above process is the Plaintiff’s delay of the process, which is completed around March 30, 2013 from the Plaintiff’s amnesty and the retaining wall of the pit of the end point A section, and the subsequent work is delayed. As such, the Plaintiff’s assertion that the construction was delayed due to the Defendant is not accepted (On the other hand, even if the Plaintiff’s assertion is based on the Plaintiff’s assertion, there is no evidence to know how the construction period was delayed due to the Defendant).

(p) Rotation cancer;

The Plaintiff asserted that the construction period had been extended by ordering additional construction between the knife knifbner construction units inside the passage rock of the business office on April 25, 2013, but this appears to be a supplementary measure due to the basic loss of the passage BOX at the existing business office, so it cannot be said that the construction period has been delayed.

(q)Road boundary stone in the Plow-dong Park;

Although the Plaintiff’s order was issued on May 13, 2013 to construct a road boundary stone, which was not reflected in the design by the Defendant’s order for work on May 13, 2013, and delayed the construction period, it cannot be said that the Plaintiff delayed the construction period due to the fact that the Defendant performed the construction on its own after the construction on the said part.

r)the final drainage pipe;

The Plaintiff asserted that the construction period has been extended by ordering the additional construction of an open wall on May 14, 2013 through the work order issued by the Defendant on May 14, 2013, but this appears to be a minor construction project implemented as a point of view of the ordering authority and supervision at the time of the preliminary completion inspection, and there is no evidence to acknowledge how the construction period has been extended.

(t) the additional construction of a tunnel washing valve BOX in the direction of the merchant in front of the mountain;

In light of the fact that the Defendant issued a work order to additionally construct a tunnel washing valve for those not originally scheduled for the Plaintiff’s remaining construction work, it cannot be said that the construction period of the Plaintiff was delayed due to the Defendant’s above instruction, in light of the fact that the original valves stay within the scope of the Plaintiff’s work, and that the said tunnel washing valve was constructed by D rather than the Plaintiff.

C. Appropriateness of the additional input fee calculated by the Plaintiff

Meanwhile, the Plaintiff asserted that the Plaintiff spent KRW 1,366,038,613 at the expense of additional construction while carrying out the remaining construction work after receiving the instant work order (as of March 15, 2013), but the Plaintiff was scheduled to incur KRW 553,297,085 prior to receiving the instant work order; ② the Plaintiff was scheduled to incur KRW 13,000,000 out of the above required amount, but the cost of the material was calculated as KRW 40,000,00,000, which is not considered to have increased generally in the remaining construction work; ③ each tax invoice submitted by the Plaintiff, which was included in the said expenses, was calculated excessively more than the number of working days, and there is no evidence to acknowledge the remaining amount of the Plaintiff’s input in the instant case.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.