Attorney Han-ro et al., Counsel for the defendant-appellant

The costs of appeal are assessed against the Plaintiff.

In order to ensure that advance payment can be carried out smoothly without difficulty in securing materials and paying wages, etc., advance payment is the pre-payment that the contractor pays the pre-payment of the pre-payment of the pre-payment of the pre-payment of the pre-payment of the pre-payment of the pre-payment of the pre-payment of the pre-payment of the pre-payment of the pre-payment of the pre-payment, not the payment of the pre-payment of the pre-payment of the pre-payment of the payment of the pre-payment of the pre-payment. If the pre-payment of the pre-payment is made for reasons such as cancellation or termination of the contract after the advance payment is made and the pre-payment of the pre-payment is made as part of the pre-payment of the pre-payment, unless the pre-payment is made for the pre-payment of the pre-payment without a separate set-off declaration, and if the pre-payment remains for the pre

Considering that it is reasonable in light of the nature of advance payment (see Supreme Court Decision 97Da5060 delivered on December 12, 1997, etc.).

Article 35(1) of the Framework Act on the Construction Industry, Article 14(1) of the Fair Transactions in Subcontracting Act, etc. provides for the direct payment of a subcontract price to a subcontractor if a contractor goes bankrupt or is unable to pay a subcontract price for any other reason, the purpose and purpose of the provision are to protect a subcontractor who is in the position of the weak and to guarantee the actual payment for the execution of a project, and is not premised on the establishment of a direct contract relationship with the subcontractor. Thus, the part which the subcontractor performed by the subcontractor is merely an agent of the contractor. Further, the subcontractor is merely an agent of the contractor’s performance, and the part which the subcontractor performed by the subcontractor is naturally included in the part of the contractor’s performance work. Accordingly, if a cause such as cancellation or termination of the contract occurs after the advance payment, the subcontractor’s performance should be deducted from the advance payment, including the construction cost for the part of the subcontractor’s work, and even if the contract price remains thereafter, the subcontractor should be directly paid to the subcontractor only if there exists the construction price.

In light of the above legal principles, the court below is just in holding that the defendant who guaranteed the above advance payment repayment obligation is not liable for any guarantee, and there is no error in the misapprehension of legal principles as to advance payment, as alleged in the grounds of appeal, since the court below, at the time of termination of the instant construction contract, 106,00,000 won paid by the plaintiff to the non-party corporation, was naturally appropriated for the non-party corporation's 146,722,590 won without any separate offset declaration, and thus, all of the non-party corporation's obligation to return advance payment was extinguished.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-sik

Justices Lee Hong-hoon

Justices Noh Jeong-hee