[2] The case reversing the judgment of the court below on the ground that there was an error in the incomplete hearing due to the omission of judgment or the non-exercise of right to explanation

[2] The case holding that the judgment of the court below erred in the misapprehension of the judgment of the court below on the ground that the above attachment and assignment order constitutes a claim against the contractor under Article 88 of the former Framework Act on the Construction Industry (amended by Act No. 5965 of Apr. 15, 199) and Article 84 of the former Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 16512 of Aug. 6, 199) and the judgment of the court below should be reversed since the court below erred in the misapprehension of the judgment of the court below on the ground that the wage which the contractor clearly paid with the intent of his claim against the contractor by exercising the right of explanation constitutes a claim against prohibition of seizure under Article 88 of the former Framework Act on the Construction Industry (amended by Presidential Decree No. 5965 of Apr. 15, 199) and Article 84 of the former Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 16512 of Aug. 6, 199). 199.

1. According to the evidence adopted by the court below, the non-party 1 corporation and non-party 2 corporation (hereinafter referred to as 'fixed construction') were assigned 10.3 billion won on June 21, 1997 to 30,818,897,200 won (the above amount was increased to 2,909,363,065 won) for 10.3 billion won on June 30, 1998; the defendant was assigned 9.3 billion won on 190,00 won on 30,000 won on 190,000 won on 30,00 won on 196,00 won on 30,000 won on 196,00 won on 196,00 won on 30,000 won on 30,000 won on 196,00 won on 30,000 won on 196,00 won on 320.

2. On the other hand, the defendant's right to preferential payment against the plaintiff's 3rd day after the attachment and assignment order of this case was served with the order of provisional seizure against the above 2,615,517,395 won which the defendant paid by December 30, 1997. The court below rejected the defendant's right to preferential payment against the plaintiff's 232,630,000 won which was paid by the defendant to his employees on May 4, 1998 after deducting the amount of 1,806,363,050 won which was paid by the defendant to the above 30th day after the above order of compulsory execution against the above 30th day after the plaintiff's right to preferential payment against the above 30th day after the above 30th day after the above order of compulsory execution was issued, but the defendant's right to preferential payment against the plaintiff's 300,000,000 won which was already paid to the above employees' right to compulsory execution against the above 194th day of Seoul High Court.

3. A. Article 88 of the former Framework Act on the Construction Industry (amended by Act No. 5965 of Apr. 15, 199) and Article 84 of the former Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 16512 of Aug. 6, 199) provide that an amount equivalent to wages to be paid to workers of the relevant construction work out of the contract amount of a construction work for which a constructor is awarded a contract shall not be seized, and an amount equivalent to wages under the above provision shall be calculated by summing up the wages specified in the design out of the contract amount of the relevant construction work, and the ordering person of the construction work shall specify the said wages in the contract or subcontract. As such, prohibiting seizure of an amount equivalent to wages to be paid to workers out of the contract amount of the construction work for which a constructor is awarded a contract shall be derived from the demand of social security under the Constitution to guarantee workers' right to live at least the right to preferential payment of wages, etc., and the seizure order shall be null and void since other provisions are actually prohibited.

In addition, since an assignment order has the effect of transferring the entire claim from the obligor to the execution creditor in lieu of the payment of the attached claim, in case where the seizure, which is the premise of the assignment order, becomes null and void, the assignment order based on the seizure, cannot be deemed null and void under the procedural law, and it cannot be deemed null and void under the substantive law. Therefore, the third obligor may make a defense against the execution creditor's claim for the payment of the whole amount, on the ground that the above substantive law is null and void (see, e.g., Supreme Court Decisions 86Meu1588, Mar. 24, 1987; 87Meu2540, Feb. 9, 198).

B. However, according to the records, although the defendant does not expressly assert that the attachment and assignment order of this case was invalid because it violated Article 88 of the former Framework Act on the Construction Industry, which prohibits the seizure of the amount equivalent to the wages out of the contract amount, and as seen above, it cannot respond to the plaintiff's claim for the whole amount. Thus, the defendant's assertion does not include a defense that the plaintiff's seizure and assignment order was invalid because it did not violate the above provision, and even if not, it can be said that the basic facts, which form the premise of the above defense, are all asserted. Thus, the court below should clearly state the purport of the defendant's claim, and further, it should be viewed that the defendant's claim constitutes a claim for prohibition of seizure under Article 88 of the former Framework Act on the Construction Industry. Accordingly, the court below's determination on the right to preferential payment under Article 88 of the former Framework Act should be viewed as having affected the party's exercise of the right to claim wages, and therefore, the court below's judgment on this ground has merit.

4. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)