[추심금][하집2001-1,265]
Whether the provisional attachment decision of the contractor's contract price claim also affects the value-added tax amount to be paid by the contractor to the contractor (affirmative)
Where the contractor pays the value-added tax payable by the contractor under the construction contract, it is reasonable to view that the value-added tax is treated as a claim for the construction work price in substance in that it is the obligation to pay it to the contractor under the same agreement as the construction price, and therefore, it is reasonable to view that the provisional attachment claim against the contractor is a claim for the construction price including the value-added tax, unless there are special circumstances. Therefore, it is reasonable to view that the provisional attachment order also has the effect of the provisional attachment order as well as the order for the execution of the work price. Therefore, the contractor cannot oppose the provisional attachment obligee by the repayment of the value-added tax against
[1] Article 696 of the Civil Procedure Act
Abandoned Line (Law Firm Dasan General Law Office, Attorneys Kim Li-hwan et al., Counsel for the defendant-appellant)
Lee Ho-ho (Attorney Lee Ho-ho et al., Counsel for the defendant-appellant)
Suwon District Court Decision 98Da59725 delivered on July 22, 1999
Supreme Court Decision 2001Da42851 Delivered on September 7, 2001
1. The judgment of the court below is revoked.
2. The defendant shall pay to the plaintiff 45,835,640 won with 25% interest per annum from September 12, 1998 to full payment.
3. The total costs of the lawsuit shall be borne by the defendant.
4. Paragraph 2 can be provisionally executed.
The decision is as follows (the plaintiff reduced the purport of the claim in the trial).
1. Basic facts
The following facts are not in dispute between the parties, or can be acknowledged by comprehensively taking into account the whole purport of the pleadings as to Gap evidence 1 through 7, Eul evidence 1-1 to 1-4, Eul evidence 3-1 to 12, Eul evidence 4 and 5, the number of dedicated witnesses of the court below, the name of the dedicated witness of the court below, the name of the dedicated witness of the court below, the name of the Haak-si testimony of the court below, and the fact-finding results of the court below's fact-finding market
(a)In July 31, 1996, the Company Co., Ltd. (hereinafter referred to as the “Nonindicted Company”) entered into a construction contract with the Defendant for the construction of a new pumps plant in the size of the first floor above the ground and the first floor below the 650,000,000 won (excluding value added tax 65,000,000 won).
B. Since the commencement of the construction work in this case on August 10, 1996, the non-party company received 540,000,000 won for the construction work from the defendant from August 23, 1996 to November 25 of the same year, and thereafter, the non-party company received 540,000,000 won for the construction work from the non-party company on November 7, 1996. After that, the non-party company was unable to proceed with the construction work, such as the non-party company's failure to pay the construction cost around November 7, 1996, the non-party company adjusted the construction cost of the above construction contract to KRW 54,00,000 for the amount of 54,00,000,000 for the adjusted construction cost. After that, the defendant additionally paid the value-added tax to the non-party company under the above agreement as the non-party company's price-added tax.
C.After the above agreement, the non-party company did not participate in the remaining construction, and the defendant selected a sub-contractor with the name of the non-party company and completed the remaining construction, such as electrical construction, directly, and obtained approval for use in the name of the non-party company on March 6, 1997.
D. On December 20, 1996, the plaintiff was issued a provisional attachment order of KRW 75,000,000 from this Court to the defendant of the non-party company (hereinafter referred to as "the provisional attachment order of this case") by this Court as 96Kadan41550, and the above decision was served on the defendant on December 23, 1996.
E. Accordingly, on December 3, 1997, the plaintiff was issued a seizure and collection order, which transferred the above provisional seizure of KRW 74,121,00 among the above construction price claims, to the defendant on December 6, 1997, based on the original copy of the judgment with the executory power of this court against the non-party company as to the non-party company by this court 97tagi12146,12147, which was issued by this court. The above decision was served on the defendant on December 6, 1997.
2. The parties' assertion
A. The plaintiff asserts that the non-party company completed the construction of this case, and that 54,000,000 won paid by the defendant to the non-party company on January 17, 1997 is part of the claim for the construction cost subject to provisional attachment, and the defendant cannot oppose the plaintiff by paying it. The plaintiff also sought payment of KRW 45,835,640 out of the amount of the claim subject to the collection order against the defendant.
B. The defendant asserts that the defendant paid the full amount of the construction cost executed by the above company to the non-party company by November 27, 1996, and the amount paid by the defendant to the non-party company on January 17, 1997 is value-added tax, not the construction cost, and thus, the plaintiff is not subject to provisional attachment, and therefore, it cannot respond to the plaintiff's claim because the claim for the construction cost against the non-party company was extinguished before the provisional attachment decision
3. Determination
A. We examine, as seen earlier, the non-party company performed the construction of this case only until November 27, 1996, and thereafter completed the remaining construction work directly by the defendant. Thus, the plaintiff's assertion on the premise that the non-party company completed the construction of this case is without merit.
B. According to the above facts, since the total amount of the claim for construction cost due to the construction of this case against the defendant of the non-party company was 594,00,000,000 including value-added tax pursuant to the agreement of November 27, 1996, and 540,000 among them was paid prior to the delivery of the provisional attachment decision of this case, it is problematic whether the provisional attachment decision of this case had the effect of the provisional attachment decision of this case against the non-party company's 54,00,000 which was reserved as value-added tax at the time of delivery of the provisional attachment order of this case. The above taxpayer of value-added tax is not the defendant, but the defendant is the non-party company, and the non-party company should pay the above value-added tax amount to the non-party company under the above construction contract of the non-party company. Accordingly, it is reasonable to view that the value-added tax amount is substantially equivalent to the claim for construction cost of this case against the non-party company's payment of this case 400.
4. Conclusion
Therefore, the defendant is obligated to pay damages for delay at the rate of 25% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from September 12, 1998 to the date following the date on which the copy of the complaint of this case was delivered to the defendant, as requested by the plaintiff, as well as the amount of 45,835,640 won as requested by the plaintiff. Thus, the plaintiff's claim of this case of this case is justified, and the judgment of the court below with different conclusions is unfair, and it is so decided as per Disposition by ordering the defendant to pay the above amount.
Judges Imprehion (Presiding Judge)