If a construction contract is rescinded in the middle, the method of calculating the remuneration to be paid by the contractor.

In the event that a contractor has to settle the construction cost due to the rescission of a contract for construction work due to the termination of the contract without completion of construction work, the construction cost shall not be calculated by deducting the construction cost to be actually incurred in the completion of the unconstruction portion from the agreed total construction cost, not from the agreed total construction cost, but from the contract total construction cost calculated based on the completed part and the construction cost to be actually incurred or to be incurred in the unconstruction portion, and the completed part shall be calculated by applying the agreed construction cost to the agreed construction cost. The completed part and the ratio shall be the ratio of the construction cost to the total construction cost to the cost already incurred in the completion of the unconstruction portion.

Articles 64, 665, and 673 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-Appellee)

[Judgment of the court below]

Defendant (Counterclaim Plaintiff)

Busan High Court Decision 93Na2414, 93Na2421 delivered on April 29, 1994

The part of the judgment of the court below against the plaintiff (Counterclaim defendant) shall be reversed, and that part of the case shall be remanded to Busan High Court.

The grounds of appeal by the Plaintiff (Counterclaim Defendant, Plaintiff hereinafter referred to as Plaintiff) are examined.

1. As to the construction cost of the fixed portion

A. According to the reasoning of the lower judgment, the lower court: (a) on March 5, 192, 192, between the Plaintiff and the Defendant (hereinafter “Defendant”) 2; (b) on the construction cost of KRW 2,00,000, KRW 2,000 for the above construction cost of KRW 2,000, KRW 2,000, KRW 70, KRW 470 for the above construction cost of KRW 2,000 for the above construction cost of KRW 7: (c) on the ground of KRW 150,00; (d) on April 6, 1992; (e) on the construction cost of KRW 2,00, KRW 70 for the above construction cost of KRW 47,00 for the above construction cost of KRW 97; (e) on the construction cost of KRW 2,00,000 for the above construction cost of KRW 47,000 for the above construction cost of KRW 67,000 for the above construction cost of construction cost of KRW 97.

B. However, barring any special circumstance, where a contractor has to settle the construction cost due to a work contract being rescinded without completing the construction work, the construction cost shall not be calculated by deducting the construction cost to be actually incurred in the completion of the unconstruction portion from the agreed construction cost, but shall be calculated by applying the agreed construction cost to the agreed construction cost calculated based on the ratio of the construction cost to the cost actually incurred or to be incurred in the completed part and the unconstruction portion. The completed construction cost ratio shall be the ratio of the construction cost to the cost already incurred in the completed part of the total construction cost (see, e.g., Supreme Court Decisions 93Da25080, Nov. 23, 1993; 91Da42630, Mar. 31, 1992; 8Da32470, Dec. 26, 1989; see, e.g., Supreme Court Decisions 93Da25080, Nov. 23, 1993>

C. Nevertheless, the court below calculated the construction cost on the part that the plaintiff is obligated to receive by deducting the construction cost incurred in the construction of the non-execution portion from the total construction cost agreed upon by the defendant. Thus, the court below erred by misapprehending the legal principles on the calculation of the remuneration to be paid by the contractor when the contract for construction work is rescinded, and it is obvious that such illegality affected the judgment.

2. As to the defendant's subrogated payment

A. According to the reasoning of the judgment below, the court below determined that the defendant is obligated to pay the above subrogation payment to the defendant, after compiling the adopted evidence and finding out the fact that the plaintiff purchased by the plaintiff and used it for the construction work prior to the discontinuance date of the construction work, and the amount of KRW 1,623,00 on June 12, 192, and the amount of KRW 6,79,100 on June 15, 199, respectively, was paid on behalf of the plaintiff.

B. However, in light of the records, there is no evidence to find that the defendant paid the price to the non-party 2 on June 15, 92, before the plaintiff discontinued the construction work, the defendant paid the price to the non-party 2 on the non-party 1, and the non-party 1,623,00 won on the non-party 2 on June 22, 92, after the discontinuance of the construction work. According to the appraisal statement prepared by the appraiser 1 of the first instance trial, if the above appraiser calculated the construction cost of the non-execution work and the non-execution work cost of the non-execution work directly executed by the defendant, and if the defendant used the above non-execution cost or the non-execution cost of the non-execution work, it cannot be excluded from the possibility that the defendant had used the above non-execution cost or the non-execution cost of the non-execution work, etc. before the plaintiff's request was made to the non-party 2.

C. Nevertheless, the court below decided that the Defendant’s payment was subrogated payment for the Plaintiff without examining whether the Defendant’s payment was used in the Plaintiff’s work on the part of the term work or used in the work executed by the Defendant. Thus, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the rules of evidence, and it is obvious that such illegality affected the judgment, and therefore, there is a reason to point out this error.

3. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)