[Defendant-Appellee] Defendant 1 and 3 others

[Defendant-Appellant]

B, the taking over of the lawsuit of the corporation C

Law Firm Lee Jae-won, Counsel for the plaintiff-appellant

[Defendant-Appellant]

21. Fixing that the amount is 20% per annum from the date of full payment to the date of full payment.

2. The costs of the lawsuit shall be borne by the defendant.

A. A. Debtor B and D (hereinafter referred to as Debtor B and D) are the company contracted by E to perform construction works for military facilities private investment projects (hereinafter referred to as "original contract works of this case") from E Co., Ltd. on September 27, 2012. 2) Debtor Rehabilitation Company subcontracted the contract amount of 6,963,00,000,000 won (including value-added tax), the construction period of 3% from September 27, 2012 to May 31, 2014, and the warranty liability period of 3% from D (hereinafter referred to as "D") among the original contract works of this case.

B. From around September 9, 2012 to around 2013, the Plaintiff entered into a contract with D and B to supply copper pipes and Dong hostings (hereinafter “instant goods”) which are materials necessary for the instant subcontracted works, and supplied the instant goods to D and the Defendant (hereinafter “instant goods supply contract”). (B) around September 9, 2013, the Plaintiff entered into a written consent for direct payment of materials costs as follows with D and the Defendant (hereinafter “written consent for direct payment”).

1. D, upon the request of the rehabilitation company for the direct payment of the Plaintiff’s material cost of the instant subcontracted project, D, in accordance with the following procedures, shall be paid directly to the Plaintiff by the rehabilitation company in accordance with Paragraph 1 of Article 2 of the Agreement. D, upon confirmation of the amount of credit (material cost on the final and conclusive statement of specifications) between D and D, the Plaintiff shall present an executory exemplification, and the rehabilitation company shall pay the amount directly confirmed to the Plaintiff pursuant to Paragraph 1 of this Article, and the obligation of the subcontract price to D shall be deemed extinguished within the scope.4.D agrees to the above payment procedure and promises not to raise any civil, penal, or administrative objection against the rehabilitation company.

From September 10 to 30, 201, the Plaintiff supplied KRW 64,292,80 in total, and KRW 104,651,672 in total at the construction site of the instant subcontracted project site from October 1, 2013 to October 30 of the same month.

D. On September 30, 2013, the Plaintiff issued to D a tax invoice of an amount equivalent to KRW 19,203,563,209 (the portion of KRW 19,270, and KRW 409, which was supplied before the instant direct payment agreement and is excluded from the instant claim), 40,000, and KRW 00, respectively, and issued a tax invoice of an amount equivalent to KRW 10,00 on October 31, 2013.

2) On October 31, 2013, the rehabilitation company paid to the Plaintiff KRW 40,00,000, which is a part of the price of the instant goods.

E. While the payment of wages, etc. was delayed due to D’s financial difficulties, etc., D’s request for the commencement of rehabilitation procedures, D’s request for the commencement of rehabilitation procedures on November 2013, 2013, D’s request for the normalization of the instant subcontracted construction site on several occasions thereafter, the rehabilitation company agreed to settle the construction cost at KRW 2,220,90,000 on November 21, 2013, and notified D’s termination of the instant subcontract on the grounds of failure to perform duties and interruption of work as a result of failure to perform duties on November 21, 2013.

(f) The scope of claims for construction price unpaid to D upon settlement agreement;

E. As above, the unpaid construction cost of KRW 2,220, 900, and KRW 00 as agreed upon in the settlement of accounts as above is KRW 264,00,000 for October 2013, and KRW 33,000 for November 2013, and KRW 297,000 for KRW 297,00 for 00.

(g) A rehabilitation company: (a) the amount of local employment insurance premium, etc., and the amount of wages, etc., directly paid to the rehabilitation company; (b) the amount of KRW 57,200 for the cost of disposal of wastes on October 2013, 201; and (c) the amount of KRW 57,200 for the cost of disposal of wastes on November 2013, 2013 to be paid by D on November 10, 2013 to the subcontracted Corporation.

12. On October 2013, the amount of KRW 206,40,00 for employment insurance premium was disbursed respectively. (2) From November 29, 2013 to January 28, 2014, the rehabilitation company paid KRW 235,759,55 won in total, including labor cost, etc., total of KRW 28,692,408, and KRW 408,000 for the instant subcontracted construction to be paid by D, on behalf of D. < Amended by Act No. 11378, Oct. 1, 2013; Act No. 11903, Oct. 29, 2013; Act No. 11604, May 23, 2013; Act No. 11906, Nov. 1, 2013>

H. On January 7, 2015, after the commencement of rehabilitation procedures for a rehabilitation company, the rehabilitation company received a decision on commencement of rehabilitation procedures as Seoul Central District Court 2014 Gohap 100212, the Defendant taken over the litigation procedures.

【Uncontentious facts, Gap’s 1 through 6 evidence, Eul’s 1 through 10 evidence (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the cause of action

As seen earlier, the rehabilitation company has agreed to pay the Plaintiff the material cost directly, barring any special circumstance, the rehabilitation company is obligated to pay the remainder of 128,944,472 won ( = 168,944, 472 won - 40,000 won - 40,000 won) calculated by subtracting the amount of money paid by the Plaintiff out of the price of the instant goods within the scope of the subcontract construction obligation to D, and delay damages from the date following the delivery date of a copy of the complaint.

3. Judgment on the defendant's assertion

A. Determination on the assertion of mutual aid, such as labor cost

1) Summary of the defendant's assertion

Before the Plaintiff exercises his right to demand direct payment in a rehabilitation company, the rehabilitation company is not obligated to pay the Plaintiff the subcontract price equivalent to the amount of the goods on behalf of the Plaintiff. The Plaintiff filed a claim for direct payment with the rehabilitation company only through the instant lawsuit. Therefore, before the Plaintiff files a claim for direct payment with the rehabilitation company, the Plaintiff claimed for the direct payment on behalf of the Defendant ( = 264,451,963).

10. Total labor cost, etc. 235,759,55 won + 28,692,408 won in total, including labor cost, shall be deducted from the unpaid construction cost on November 2013.

2) In a case where the contractee and the contractor agree to pay directly to the supplier the price of the goods necessary for the project within the scope of the contract deposit obligation for the contractor, and the supply was made accordingly, if the contractor’s execution creditor attached the contract deposit against the contractor before the seizure of the contract deposit, the contractor’s execution creditor may oppose against the contractor even before the contract is paid to the supplier (see, e.g., Supreme Court Decisions 2014Da3376, Sept. 4, 2014; 89Da2049, Apr. 27, 1990; 2007Da54108, Feb. 29, 2008).

B) Where the contractor’s wages remain in arrears at the time of the contract for construction works, if the contractor agreed to pay the said wages to the contractor directly to the workers from among the construction costs, the contractor may refuse to pay the contractor the construction cost equivalent to the overdue wages. Where the contractor’s claim for the payment of the construction cost has been served upon the contractor’s request by the obligee, the contractor may set up against the obligee the aforementioned defense against the obligee based on provisional attachment even before the payment of the overdue wages (see, e.g., Supreme Court Decisions 2014Da3376, Sept. 4, 2014; 2010Da1483, Jul. 8, 2010).

3) Determination is made by the rehabilitation company on behalf of D between November 29, 2013 and January 28, 2014.

10. The fact that total labor cost, etc. of KRW 235,759,55, and total labor cost, etc. of KRW 28,692, and KRW 408 on November 2013 is recognized as above.

B) However, in full view of the aforementioned legal principles and the facts acknowledged in the above 1. Paragraph, and the following circumstances acknowledged by the purport of the entire pleadings, the rehabilitation company is obligated to pay directly to the Plaintiff the subcontract price corresponding to the price of the goods after the Plaintiff supplied the goods to the site of the subcontracted project. Therefore, the rehabilitation company cannot oppose the Plaintiff due to the circumstances that occurred after the Plaintiff supplied the goods to D, and even if the obligation, such as the above labor cost, was incurred prior to the delivery date of the goods of this case, the above assertion by the Defendant is without merit.

(1) The instant direct payment agreement is between the Plaintiff, D, and 3 rehabilitation companies. The instant direct payment agreement is not a "direct payment agreement to which Article 14 (1) 2 of the Fair Transactions in Subcontracting Act applies" and it does not apply to the said Act. However, the Plaintiff, D, and rehabilitation companies, who are the parties to the instant direct payment agreement, are bound by the instant direct payment agreement (the instant direct payment agreement is not a third party, who is the other party to the payment of labor costs, etc., and is not the said third party, but the said third party. The Defendant, as the main payment contract of the instant case, did not appear to have difficulty in the Plaintiff’s field work due to the delayed payment of D’s wages, which is the subcontractor, 0. The Plaintiff did not directly comply with the instant direct payment agreement of D and D 10. In light of the fact that the Plaintiff did not directly pay D and D 20 months for the purpose of smooth progress of the entire prime contract.

43. A tax invoice equivalent to KRW 43,563,209, and a tax invoice equivalent to KRW 100,000 was issued on October 31, 2013. Therefore, around October 31, 2013, the Defendant was able to easily verify the price of the instant goods to be paid to the Plaintiff according to the instant direct payment agreement. (4) When entering into a settlement agreement with D on November 20, 2013, the rehabilitation company, as a rehabilitation company, should have confirmed the quantity of goods supplied to the site of the instant subcontracted project by that time, taking into account the purport of the instant direct payment agreement, and have reflected it in the settlement agreement.

(5) There is no ground to deem that the payment of wages, D employees’ wages, food and accommodation expenses, etc. to workers at the site of the subcontracted project of this case, in which the agreement with the rehabilitation company was not made, takes precedence over the payment of the Plaintiff’s obligations to the Plaintiff. (6) In the instant direct payment agreement, it is deemed that the obligation for the subcontract is extinguished when the rehabilitation company demands to present an executory exemplification, or when it pays the amount confirmed to the Plaintiff, on the premise that the Plaintiff’s right to claim the direct payment pursuant to the instant direct payment agreement is recognized, the procedure for determining the scope of the claim is prescribed in the premise that the Plaintiff’s right to claim the direct payment is recognized, and it is merely for establishing the legal effect of the direct payment. Therefore, the aforementioned provision alone cannot be viewed as “D at any time prior to the Plaintiff’s direct payment claim with an executory exemplification and filing a claim for the direct payment with the rehabilitation company.”

B. Determination as to the assertion that it is necessary to present an executory exemplification for a claim for direct payment

1) Summary of the defendant's assertion

The written consent of the direct payment on September 9, 2013 states that "where the plaintiff requests the rehabilitation company to submit an executory exemplification against D, the amount of the material cost shall be paid." However, since the plaintiff has not yet requested to do so by presenting an executory exemplification of the written consent, the defendant cannot pay the material cost.

2) Determination

However, as seen earlier, requiring the presentation of executory exemplification in the letter of consent of the direct payment of this case is merely a provision of the procedure for the confirmation of the scope of the claim on the premise that the plaintiff's right to claim direct payment under the direct payment agreement of this case is acknowledged. As long as the scope of the claim for goods supplied to the site of the subcontracted project can be determined by evidence submitted by the plaintiff in the lawsuit of this case, the above assertion by the defendant is without merit.

C. Determination of the assertion regarding mutual aid, such as employment insurance, waste disposal, and defect repair construction costs

1) The gist of the Defendant’s assertion is that the sum of KRW 1,914,80, and waste disposal expenses paid by the Defendant on behalf of D ( = KRW 1,651, and KRW 200 on October 2013 + KRW 57,200 on the disposal of divided waste on October 2013 + KRW 57,200 on the disposal of divided waste + KRW 206,40 on November 1, 2013) should be deducted from the construction cost.

B) The warranty bond amount of KRW 66,627,00 ( = 2,220,900,000, X warranty bond of KRW 00) shall be deducted from the construction price.

2) Determination

As seen earlier, the Defendant’s assertion on the deduction, such as labor cost, is without merit.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

Judges Ha Sung-woo

Judge Maximum United States;

In light of the reasons, etc., the plaintiff's claim disputing this case is a claim against the debtor B, and thus, the main text is applicable.

The same shall apply to the judgment of the court, such as the Republic of Korea.