1. The Defendant calculated with interest rate of 15% per annum from July 28, 2017 to the day of full payment with interest rate of 42,251,040 to the Plaintiff.

Facts of recognition

On August 2016, the Plaintiff entered into a Rotterdam construction contract with the Defendant operating a company B, and with respect to some of the C buildings located in Jinju-si, with the construction cost of KRW 140 million.

The Plaintiff paid as advance payment the Defendant KRW 50,000,000 on August 31, 2016, and KRW 30,000,000 on September 13, 2016, respectively, but the Defendant suspended construction around September 2016.

The Plaintiff notified the Defendant of the cancellation of the construction contract at that time as the Defendant continued to perform the Plaintiff’s demand for the progress of construction work, and requested the Defendant to submit a detailed statement of construction cost on the premise that the construction cost incurred by the Defendant is calculated based on the construction cost.

In October 2016, the Defendant submitted a detailed statement of construction cost that the Plaintiff paid construction cost of KRW 43,448,960 to the Plaintiff.

In confirming the construction cost of the Defendant and the above construction cost, the Plaintiff recognized the Defendant’s construction cost of KRW 5,00,000 for cartoons of the third floor cartoon paper construction work, KRW 200,00 for the installation of concrete pages of the second beauty art room, KRW 500,00 for the construction cost, and KRW 37,748,960 for the Defendant’s residence during the construction period, except for the remainder of KRW 37,748,960 for the construction cost (=43,448,960 - KRW 5,00,000 - KRW 200,000 - 5,000 for the Defendant’s residence during the construction period).

[Grounds for recognition] The items of evidence No. 3-1, No. 2, and No. 5, and the purport of the whole pleadings is that the defendant did not appear at all on the date of the conciliation of the court and the pleading over two times.

Judgment

The obligation to return an advance payment is a kind of obligation to restore the obligation arising from the rescission of a contract upon the contractor’s nonperformance (see, e.g., Supreme Court Decision 2011Da109586, May 24, 2012). If, in a contract for construction work, a contractor has to return an advance payment to the contractor for reasons such as the rescission or termination of the contract and the contractor has to return the advance payment while the contract was terminated or terminated, special circumstances arise.