[1] The case holding that, in case where the "amount equivalent to wages to be paid to the worker of the relevant construction" cannot be specified among the construction price remaining as at the time a seizure and assignment order of the constructor's unpaid construction cost claim is served, the amount shall be determined according to the ratio of wages among the total construction price of the contract for construction work

[2] Whether the prohibition of seizure of Article 88 (1) of the Framework Act on the Construction Industry prohibits workers of the construction work in question from seizing the construction work price in order to collect wages against the constructor (negative)

[1] The case holding that in the case where the "amount equivalent to wages to be paid to the worker of the construction work in question" prohibited from seizure under Article 88 (1) of the Framework Act on the Construction Industry among the construction work remaining as at the time the attachment and assignment order for the constructor's unpaid construction cost claim is not specified, it is reasonable to determine the amount according to the ratio of wages out of the total construction work price of the contract

[2] Article 88 of the Framework Act on the Construction Industry and Article 84 of the Enforcement Decree of the same Act prohibit the seizure of an amount equivalent to wages to be paid to workers of the relevant construction work out of the contract amount of a construction work. The reason arises from the demand of social security under the Constitution to guarantee workers’ livelihood stability by preventing the situation where ordinary creditors of the constructor seizure up to the portion corresponding to wages to be paid to workers out of the contract amount of the construction work by the constructor so that workers may not receive wages from the above work price. Thus, the above provision does not prevent the workers from seizing the work price in order to collect wages against the constructor.

[1] Article 8(1) of the Framework Act on the Construction Industry, Articles 223 and 231 of the Civil Execution Act / [2] Article 88 of the Framework Act on the Construction Industry, Article 84 of the Enforcement Decree of the Framework Act on the Construction Industry, Articles 223 and 231 of the Civil Execution Act

Kim Jin Kim

Daesung Comprehensive Commercial Co., Ltd. (Law Firm Cheong Pung, Attorney Lee Ho-hoon, Counsel for defendant-appellant)

Cheongju District Court Decision 2003Gadan21889 Decided July 9, 2004

April 7, 2005

1. The judgment of the court of first instance is modified as follows.

A. Of the distribution schedule prepared on October 24, 2003 with respect to the dividend procedure case No. 2003ta735 of this Court, the dividend amount of the plaintiff (appointed party) and the remaining designated parties shall be KRW 0,000 as stated in the distribution schedule by each designated party, and the dividend amount of KRW 17,049,180 against the defendant shall be corrected to KRW 10,529,574.

B. The plaintiff (Appointed)'s remaining claims are dismissed.

2. The total cost of a lawsuit shall be borne individually by each party.

1. Purport of claim

The distribution schedule drawn up by this Court on October 24, 2003 with respect to the dividend procedure case No. 2003ta-735 of this Court shall be deleted, and the amount of 17,049,180 won against the defendant shall be corrected to be distributed to the plaintiff (the appointed party; hereinafter referred to as the "Plaintiff").

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in the entries in Gap evidence 1 through 6:

A. The non-corporate construction company (hereinafter referred to as the "non-corporate construction company") is a constructor under the Framework Act on the Construction Industry and was awarded a contract for the construction of new machinery and equipment from the Republic of Korea for KRW 353,013,000 from the Republic of Korea around 202. The aggregate amount of wages stated in the statement of contract price calculation of the above construction work is KRW 135,017,788 (hereinafter referred to as the "construction work of this case", "construction work of this case", "construction work of this case", and "contract contract of this case").

B. The plaintiff, the Appointer's erroneous oil, Kim Jong-ho, and the tears were employed by the non-party company as an employee of the above corporation and provided labor concerning the installation of pipes and conduits during the construction of the above corporation. However, the non-party company did not receive the following amount from the non-party company's wages. Ultimately, the non-party company prepared and delivered the notarial deeds of No. 8073 of 2003 (hereinafter referred to as the "notarial deeds of this case") to the plaintiff and the remaining designated parties by a notary public who is obliged to pay the above unpaid wages by July 2, 2003.

In the case of the Appointer of the Plaintiff Gimjin Kim Jong-ho, who was included in the main text, the Appointer, the Appointer Kim Jong-ho, the Appointer Kim Jong-ho et al., who was 6 million won in total, 4.5 million won in total, KRW 4.7 billion in total, KRW 4.7 billion in total, KRW 2.7 billion in total, KRW 2.77 million in total, KRW 4.5 million in total,

C. The non-party company did not pay each of the above wages by the due date on the above notarial deed, and the plaintiff and the remaining designated parties appointed the plaintiff as the designated party, based on the above notarial deed copy.

§ 203. Other 1479 of this Court

Therefore, on July 8, 2003, the non-party company filed an attachment and assignment order with respect to the claim for the construction price of this case against the Republic of Korea and received the decision. The above attachment and assignment order was served to the Republic of Korea on the 12th of the same month.

D. Meanwhile, the defendant, based on the authentic copy of the notarial deed No. 748 of 2002 No. 748 of 2002, had a notary public applied for a seizure and assignment order for the non-party company's claim for the construction price of this case against the Republic of Korea on May 19, 2003, with the execution bond of KRW 77,597,650 on this Court No. 2003TT 102 of 2003. The above decision was served to the Republic of Korea on May 23, 203.

E. At the time the Defendant’s seizure and assignment order was served on the Republic of Korea, the claim for the instant construction payment remains KRW 17,049,180. On July 30, 2003, Korea deposited the remainder of the construction payment (hereinafter “the payment for the instant construction”) to the deposit official pursuant to Article 248(1) of the Civil Execution Act (hereinafter “the instant deposit”) with the deposit official pursuant to Article 1575 of the same Act (hereinafter “the instant payment for the construction payment”). On the same day, the said statement was accepted, and the distribution procedure for the said deposit was commenced on the same day.

F. On October 24, 2003, on the date of distribution of the above distribution procedure, the Defendant’s seizure and assignment order was first delivered to the Republic of Korea, and the Defendant deemed that all of the unpaid construction costs claims were transferred to the Defendant, and accordingly, a distribution schedule was prepared to distribute the total amount of the above deposit to the Defendant. The Plaintiff appeared on the aforementioned date of distribution, and raised an objection as to the Defendant’s whole amount of the claim and the amount of the distribution, and filed a lawsuit of demurrer against the Defendant on the 29th of the same month, before one week elapses.

2. Determination:

A. The plaintiff's assertion

The plaintiff asserts that since the claim for the unpaid construction cost of this case, which is the claim for the seizure and assignment order received by the defendant, falls under the amount equivalent to the wage to be paid to the worker of the construction work concerned who is prohibited from seizure under the Framework Act on the Construction Industry, the above seizure order is null and void, and therefore the assignment order is null and void, so it is improper to distribute the money of this case to the defendant, and the above deposit money should be distributed to the plaintiff and the remaining designated parties, who are workers of the

B. The validity of the Defendant’s seizure and assignment order on the unpaid claim for the construction price of this case

Article 88 (Prohibition of Seizure of Wages) of the Framework Act on the Construction Industry provides in Paragraph (1) that "the amount equivalent to wages to be paid to workers of the construction work from among the contract amount of the construction work for which the constructor has contracted shall not be seized." Paragraph (2) of the same Article provides that "the scope and the method of calculating the amount equivalent to wages under paragraph (1) shall be prescribed by the Presidential Decree." Article 84 (Methods, etc. of Calculating Wages Excluded from Seizure) of the Enforcement Decree of the Framework Act on the Construction Industry shall be calculated by summing up the wages specified in the calculation sheet among the contract amount of the construction work in question." Paragraph (2) of the same Article provides that "the ordering person of the construction work shall specify the wages under paragraph (1) in a contract or subcontract document." On the other hand, since the non-party company falls under the constructor under the Framework Act on the Construction Industry, the amount equivalent to wages of the construction work in this case against the non-party company which is the constructor shall not be seized.

However, insofar as there is no way to specify the amount equivalent to the wages under the above provision out of the unpaid construction cost of this case remaining at the time the above attachment and assignment order of the defendant was served, the amount equivalent to the wages out of the unpaid construction cost of this case shall be determined according to the ratio of wage claims out of the total construction cost of the contract of this case. According to the above acknowledged facts, the ratio of wage claims out of the total construction cost of this case shall be 38.24% (10 x wage claim 135,017,788 ± total construction cost claim 353,013,00, and small number of less than 17,049,180 x 17,000 x 17,000 x 17,000 x 180 x 17,040 x 3824). Thus, the plaintiff's assignment order of this case cannot be asserted as invalid in all of the above judgment and assignment order of this case.

C. The validity of the Plaintiff’s attachment and assignment order on the unpaid claim for the construction price of this case

The defendant's seizure and assignment order issued by the defendant against the above 6,519,60 won of the unpaid construction price claim is null and void since it was erroneous for the defendant to distribute the above part to the defendant for the same reason. Thus, since the plaintiff's seizure and assignment order should not be distributed to the plaintiff and the remaining designated parties, it is prohibited from seizure of the amount equivalent to the wages to be paid to the worker of the pertinent construction work out of the contract amount under Article 88 of the Framework Act on the Construction Industry and Article 84 of the Enforcement Decree of the same Act, since the above 6,519,60 won of the non-paid construction price claim and the above 6,600 won of the above 6,000 won of the execution court's 6,000 won of the above 6,000 won of the above 6,000 won of this case's 6,000 won of this case's 6,000 won of this case's 6,000 won of this case's 6, it should not be paid dividends to the plaintiff's 6.

3. Conclusion

Therefore, among the distribution schedule prepared by this court on October 24, 2003 with respect to the dividend procedure case of this court 2003ta735, the dividend amount of the plaintiff and the remaining designated parties is 0 won as stated in the distribution schedule by the designated parties, and the dividend amount of 17,049,180 won against the defendant is 10,529,574 won (=17,049,180 - 6,519,606 won). Thus, the plaintiff's claim of this case is accepted within the above scope of recognition and it is dismissed as there is no ground for rejection. Since the judgment of the court of first instance is partially unfair, it is so decided as per Disposition by accepting the defendant's appeal and changing the judgment of the first instance as above.

Judges Park Jong-young (Presiding Judge) Allocation for Kim