채무부존재확인
1. The part of the judgment of the court of first instance against the principal lawsuit shall be revoked;
2. The Defendant (Counterclaim Plaintiff) shall attach an annex to the Plaintiff (Counterclaim Defendant).
The principal lawsuit and counterclaim shall also be deemed to have been filed.
1. Basic facts
A. On May 201, the Defendant received a contract from the GS Construction Co., Ltd. (hereinafter “GS Construction”) for the instant construction project as KRW 1,092,190,000 from Gangnam-si and 57 (hereinafter “the instant construction project”). The Defendant maintained the construction cost as of May 30, 2012, while the rate of liquidated damages is 1/1,000 of the construction cost per day, and the period of warranty is 1/1,00 of the construction cost per day from February 1, 2013 to January 31, 2015.
(hereinafter referred to as the “construction contract” refers to the instant construction contract. (b)
On May 10, 2011, the Defendant subcontracted the entire construction of the instant subcontract to the Plaintiff (hereinafter “instant subcontract”), but did not prepare a subcontract agreement.
C. On May 12, 2011, the Plaintiff completed the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage”) under Article 43209 of the receipt of the Namdong Branch of the Incheon District Court, with respect to the real estate listed in the attached list owned by the Plaintiff to the Defendant (hereinafter “instant real estate”) as the maximum debt amount of KRW 100 million and the debtor A.
[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 9 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings
2. The parties' assertion
A. The plaintiff asserts as follows as the ground for the claim of this case.
1. The Plaintiff, as a result of the conclusion of the instant subcontract with the Defendant, agreed to pay the subcontract fee to the Defendant while entering into the said subcontract, and completed the registration of the establishment of a mortgage in order to guarantee the payment of the subcontract fee.
However, the instant subcontract is null and void in violation of Article 29(1) of the Framework Act on the Construction Industry, which is a mandatory provision, as a blanket subcontract that the Defendant subcontracted the entire construction project contracted by GS Construction. Therefore, the said subcontract is incidental to the instant subcontract.