In a case where the contract for construction work with the subcontractor Eul was automatically terminated due to the contractor Gap's responsible reasons and the calculation of the contract amount paid in excess of the contractor Gap was at issue, the case holding that the contract amount of the contractor Gap should be calculated on the basis of the amount which is not included in the value-added tax as well as the contract amount of the contractor Eul which is the basis of the contract amount

Article 202 of the Civil Procedure Act

Atetra Construction Co., Ltd. (Law Firm Chungcheong, Attorney Kim Jung-il, Counsel for the plaintiff-appellant)

MobC Co., Ltd. (Law Firm Lee & Lee & Lee, Attorneys Lee Chang-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na68448, 68455 decided August 12, 2010

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the claim for the return of construction cost out of the counterclaim is reversed, and that part of the case is remanded to Seoul High Court. The Plaintiff (Counterclaim Defendant)’s appeal is dismissed

The grounds of appeal are examined.

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant)

Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) asserts to the effect that the lower court did not reflect the price of ready-mixed from May 26, 2008 to May 31, 2008, and personnel expenses from May 26, 2008 to June 30, 2008 in calculating the amount of money, it erred in the misapprehension of legal principles as to calculation of the amount of money, and in violation of the rules of evidence, etc. However, the above ground of appeal is merely an error of the evidence preparation and fact-finding which belong to the exclusive jurisdiction of the fact-finding court, and thus, it cannot be accepted.

The court below acknowledged the facts based on the employment evidence, and judged that the contract for construction work between the plaintiff and the defendant (the plaintiff and the plaintiff Counterclaim; hereinafter only referred to as the "the defendant") was automatically terminated on June 30, 2008 due to the plaintiff's reasons attributable to the plaintiff's liability. In light of the relevant legal principles and records, the judgment of the court below is just, and there are no errors in the misapprehension of legal principles as to the reasons attributable to the non-performance of obligation, violation of the rules of evidence, incomplete deliberation, etc.

2. As to the Defendant’s ground of appeal

According to the reasoning of the judgment below, the court below acknowledged the facts as to the plaintiff's claim for the return of the construction price during the counter-action against the defendant, and determined that the plaintiff's claim for the construction price under the ratio of the plaintiff's claim against the defendant's sexual intercourse (=2.6 billion won x 64.203% x 64.203% x 110% x value-added tax) was paid in excess of 1,85,467,831 won in excess of the construction price according to the ratio of the period of the construction work interrupted by the defendant. Thus, the court below held that the plaintiff is liable to return the construction price exceeding 19,262,031 won (=1,85,467,831 won) paid to the defendant.

However, according to the reasoning of the judgment below and the records, the plaintiff entered into a contract for construction work with the defendant on November 21, 2007 that the construction work in this case was ordered to be contracted by the defendant (i.e., value of 2.6 billion won + value of 2.60 million won + value-added 2.60 million won). The plaintiff's claim amount based on the base value ratio until the plaintiff discontinued the construction work in this case is 1,69,278,000 won (i.e., value-added x 2.64.20 billion won x 64.203%, value-added x 64.203%, value-added x 1,74,967,831 won + value-added 80,500,000 won and value-added 2.67,000 won). On the other hand, the defendant's payment of construction work price was not included in the plaintiff's reimbursement of construction price against the plaintiff.

Nevertheless, the court below, however, did not include value-added tax in the Defendant's contract price, while the Plaintiff's contract price amount includes value-added tax and calculated the contract price paid in excess of the amount based on each money. The court below erred by misapprehending the legal principles on the calculation of the contract price paid in excess, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the part against the Defendant regarding the claim for the return of construction cost among the counterclaims of the lower judgment is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)