2011Provisional 14040 Construction Price

Han L&C Co.

1. Masterchis Co., Ltd;

2. Co., Ltd.;

November 9, 2012

November 23, 2012

1. The plaintiff's claim against the defendant M& Co., Ltd. is dismissed.

2. The Defendant Co., Ltd. shall pay to the Plaintiff 33,681,625 won with 6% interest per annum from December 31, 2009 to March 30, 2012, and 20% interest per annum from the next day to the day of full payment.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant M& Co., Ltd. is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant P&C Co., Ltd. is assessed against the Defendant

4. Paragraph 1 can be provisionally executed.

The purport of the claim against the primary defendant M&M: The money calculated by the ratio of 33,681,625 won to 33,681,625 won and the amount of 6% per annum from May 4, 2010 to the service date of the original copy of the instant payment order, and the amount of 20% per annum from the following day to the day of full payment.

The purport of the claim against the conjunctive defendant: It is as specified in paragraph (2) of this Article.

1. Basic facts

A. On November 7, 2006, C&C Co., Ltd. (hereinafter referred to as the “C&C Co., Ltd”) was awarded a contract with Defendant M&M for the construction of 1-1 day-to day-day Masan Masan apartment (hereinafter referred to as the “new construction of the instant apartment”).

B. On October 20, 2008, the Plaintiff entered into a subcontract with C&C Co., Ltd. (hereinafter “the subcontract in this case”) with the contract amount of KRW 2,081,738,375 (the original part shall be paid in cash within 60 days from the date of receipt of the object), and the construction period from October 20, 2008 to July 31, 2009 (hereinafter “the subcontract in this case”). On August 17, 2009, the Plaintiff changed the contract amount of KRW 33,415,420,00 with the increase of the construction amount of KRW 33,681,625, and the construction period from October 20 to October 31, 2009 (hereinafter “the subcontract in this case”).

D. The Plaintiff completed the instant construction around the end of October 2009, and C&B paid only the contract amount of KRW 2,081,738,375 of the instant subcontract, and did not pay KRW 333,681,625 of the increased contract amount.

E. On the other hand, the defendant Bag Co., Ltd. (hereinafter "the defendant Bag") succeeded to the obligations related to the new construction of the apartment of this case executed by the C&W bank while acquiring C&W bank.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 3, 4, 11, Eul evidence No. 7 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination as to the claim against the main defendant (Defendant M)

A. The plaintiff's assertion

The Plaintiff asserts that, on around December 209, the Plaintiff, the owner of the new apartment construction of this case, and the Plaintiff, the Plaintiff, the subcontractor, was obligated to pay the subcontract price for the part executed by the Plaintiff, the subcontractor under the subcontract of this case, to the Plaintiff, pursuant to Article 35 (2) 1 of the former Framework Act on the Construction Industry (wholly amended by Act No. 9875 of Dec. 29, 2009; hereinafter referred to as the “former Framework Act on the Construction Industry”), and that, on the other hand, Defendant M&, the owner of the new apartment construction of this case, agreed to pay directly to the Plaintiff as the subcontractor, Defendant M& is obligated to pay 33,681,625 won and delay damages.

B. Determination

In light of the provisions of Article 35(3) and (2)1 of the former Framework Act on the Construction Industry, when the ordering person and the subcontractor agree clearly to pay the subcontract price directly to the subcontractor, the ordering person shall not be obligated to pay the subcontract price directly to the subcontractor in question, but the subcontractor shall be obligated to pay the subcontract price directly to the subcontractor in question. It is reasonable to interpret that the obligation to pay the contractor in advance to the subcontractor is extinguished within the scope of the obligation to pay the subcontractor in advance (see Supreme Court Decision 2007Da54108, Feb. 29, 2008).

However, if Gap evidence Nos. 2 and Eul evidence Nos. 7 show the overall purport of the pleadings, it can be acknowledged that the agreement between defendant P&M, the ordering person, and the plaintiff, the contractor, to pay the subcontract price directly to the plaintiff, who is the subcontractor on April 4, 2009, 17, and the defendant P&M, the ordering person, constitutes 2,081, 738,375 won, which is the contract price of the subcontract of this case. At the time of the agreement above, the plaintiff performed construction work equivalent to 2,081, 738,375 won, which is the contract price of this case under the subcontract of this case, and the plaintiff did not perform construction work equivalent to 33,681,625 won, which is the increased contract price under the subcontract of this case, has no dispute between the parties. Thus, the plaintiff's assertion that the defendant P&M, the ordering person, must pay directly to the plaintiff on April 17, 2009.

3. Determination on the claim against the conjunctive defendant

A. The duty to pay the unpaid construction cost by the Defendant U.S.C.

According to the above facts, the defendant Ba Bank, who has succeeded to all obligations related to the new construction of the apartment of this case by C&C, is obligated to pay to the plaintiff the unpaid construction cost of 33,681,625 won and damages for delay calculated at the rate of 6% per annum as stipulated in the Commercial Act from December 31, 2009 to March 30, 2012, which is the delivery date of the written application for the change of claim and the cause of claim against the defendant Bab, from the date of completion of the construction of this case to the date of completion of the construction of this case, to the date of delivery of the written application for the change of claim and the cause of claim.

B. Determination as to the assertion by the Defendant friendly

1) In accordance with Article 35(2)1 through 2 of the former Framework Act on the Construction Industry, the Plaintiff’s well-known party

Since the defendant M&, who is the ordering person, claimed a direct payment of the subcontract price, it asserts that the obligation to pay the contract price of this case to the plaintiff of the defendant U&S was extinguished in accordance with Article 35(3) of the above Act.

2) As seen in the above 2-B B, it is reasonable to view that the amount arising from the obligation of Defendant M&M, the ordering person, by the direct payment agreement of the subcontract price on April 17, 2009, is KRW 2,081,738,375. Thus, pursuant to Article 35(2)1 and (3) of the former Framework Act on the Construction Industry, the Defendant’s obligation to pay the Plaintiff shall be deemed extinguished within the scope of KRW 2,081,738,375, and the Defendant’s obligation to pay the increased amount of the subcontract price in excess of the above obligation to pay KRW 33,681,625, the above Defendant’s assertion that the above obligation to pay the Plaintiff was extinguished is without merit.

3) Where a contractor receives the completion money for a contracted construction work, he/she shall pay the subcontractor in cash within 15 days from the date of the receipt (referring to the due date of draft where the contractor receives the work price by draft from the ordering person), and where the contractor delays the payment of the subcontract price on at least two occasions and the subcontractor requests the direct payment of the subcontract price, he/she shall be deemed to have terminated within the scope of the subcontractor’s obligation to pay the subcontract price (see Article 35(2)2 and (3) of the former Framework Act on the Construction Industry).

However, there is no evidence to acknowledge that C&C Co., Ltd., the contractor, received the construction cost of KRW 33,681,625, which is the increased construction cost under the subcontract modification contract in this case, from Defendant S&M, and did not delay the payment of the price to the Plaintiff two times or more (In light of the evidence No. 6-2, C&C’s entry, it can be known that C&C Co., Ltd did not receive the said KRW 33,681,625 from Defendant S&M). The above Defendant’s assertion under Article 35(2)2 and (3) of the former Framework Act on the Construction Industry is without merit.

4. Conclusion

If so, the plaintiff's claim against the main defendant M in the name of the main defendant is dismissed as it is without merit, and the claim against the main defendant in the name of the main defendant in the U.S. shall be accepted as it is decided as per Disposition.

Chief Judge, Southern Judge, and Vice Chief Judge

Judges Kim Jae-tae

Judge Lee Hong-soo