수급인의 보수채권과 도급인의 하자보수에 갈음하는 손해배상채권 간의 상계 후 잔여 1)보수채무의 이행지체 시기 - 대상판결: 대법원 1989. 12. 12. 선고 88다카18788 판결 -

Abstract

The research object judgment mainly consists of two parts. First, the contractor's obligation to repair defects and the obligation to pay defect maintenance costs are in a simultaneous performance relationship with the owner's obligation to pay for the construction work. as a result, as long as the contractor holds the right to repair the defect or claim damages and exercises it, the owner's obligation to pay for the construction work will not be delayed. Second, the deadline for the owner's obligation to pay for the construction work is the completion date of the building, and the deadline of the contractor's obligation to repair defects and the obligation to pay defect maintenance costs is when the contractor exercises its rights. however, if the owner sets off the balance of the project payment receivable, the performance of the contract shall be delayed from the day after the statement of intention to set off.The research subject judgment is based on the all-rejection theory to the extent of performance refusal based on the simultaneous defense right. however, the reason for adopting the all-rejection theory is not disclosed. However, it seems that the following matters were taken into consideration when the research object judgment took the all-rejection theory based on the defense right of simultaneous performance. ⅰ) the defense of simultaneous performance between the claim for damages based on defect maintenance and the claim for construction work falls under the defense of simultaneous performance under a non-bilateral contract. ⅱ) it is necessary to investigate the fact that Articles 667, Paragraph 3 to Article 536 of the Civil Code have been applied mutatis mutandis, and determine the scope of performance refusal based on the defense right of simultaneous performance. ⅲ) the purpose of the above provisions seems to be to set up a simultaneous performance relationship so that the redemption right based on the claim for damages can be exercised to reduce the price. In addition, the reason why owner was liable for delay in fulfilling the residual maintenance obligation from the day after the indication of the intention to set off was as follows. ⅰ) this takes into consideration the practical problem that it is not practically easy to determine the defect repair cost in the claim for damages. ⅱ) the retroactive effect of set-off cannot overturn the exemption from responsibility for delay in performance