정비사업조합의 시공계약 해제에 따른 법적 쟁점

Recent disputes between a construction company and a maintenance project association over such project terms and conditions as construction costs are leading to rising instances where a maintenance project association is unilaterally stripping the status of a contractor. However, in the event that a maintenance project association exercises the right of rescission pursuant to Article 673 of the Civil Act, this may consequentially change the maintenance project cost. That said, for the purpose of ensuring the validity of a contractual rescission in accordance with Article 673 of the Civil Act, the conditions precedent shall be a resolution by a general assembly relating to such rescission and compensation for damages that comprises an integral part thereof. Meanwhile, even where a maintenance project association rescinds a contract on the basis of the foregoing Article 673 of the Civil Act, the relevant association is required to compensate the “previous input costs that the contractor incurred regarding the maintenance project” and the “gains that said contractor would have reaped if the relevant construction was completed by virtue of the construction contract.” In such case, the gains attainable by the contractor, which entered into a construction contract with the maintenance project association, via performance of the relevant contract may be deemed as the amount precluding “direct or indirect costs to which a contractor may avoid incurring by not performing the contract” from the “construction payment based on the contract.” During the appraisal process in the suit over merits, the same is calculated based on the amount less the construction execution cost from the contract amount that reflects the inflation index. Furthermore, Article 396 of the Civil Act recognizes a contractual rescission depending on the intention of an employer albeit where no attributable grounds exist on the part of a contractor. That being said, unless special circumstances exist, it is reasonable to deem the inapplicability of the limitation of liability, etc. to ensure fairness in comparative negligence or loss division, which is generally applied where damages liability is assumed due to nonperformance. In addition, to the utmost extent possible, such circumstances as efforts required by the contractor during the undertaking of the construction project upon contractual rescission or avoidance of risks related to the project that the contractor inevitably has to take over resulting therefrom ought to be reflected in the calculation of damage amount via an appraisal process.