장기계속 공사계약에서 총 공사기간 연장에 따른 계약금액 조정 문제 - 대법원 2018. 10. 30. 선고 2014다235189 전원합의체 판결을 중심으로 -

Abstract

Since contracts for any construction work require long-term fulfillments, unlike one-time contracts such as sales contracts, there are cases where a specific process or the total completion date of the construction gets delayed due to unforeseen circumstances or reasons at the time of the contract’s conclusion. In cases where the counterparty of the contract is responsible for such schedule delay, it is obliged to compensate the liquidated damages for the delay after the deadline for completion negotiated in the contract. Yet in cases where the counterparty is not responsible for such schedule delay, it still bears the additional costs for the labor, maintenance, and more, since it has no choice but to continue the process until the construction is completed. In the latter case, it is unfair for the counterparty that is not responsible for the schedule delay to bear all the additional costs. Therefore, in such cases where the counterparty is not liable for the schedule delay, the costs that it used to maintain the construction site for the extended duration should be compensated by the ordering agency. The most reasonable intent of both contracting parties of a continuous long-term contract is to sign one general contract, and to sign annual contracts within the boundaries of the total construction period and construction cost negotiated in the general contract. Thus, in cases where the total duration of the construction is delayed without the fault of the counterparty of the continuous long-term construction contract, it is most appropriate to conclude that the counterparty has the right to demand the overhead expenses that occur during the delay from the ordering agency.