Seoul High Court Decision 200Na1488 delivered on August 1, 200

Defendant 1 and seven others (Law Firm East, Attorney Lee Jong-il, Counsel for the defendant-appellant)

August 29, 2012 (for the defendants other than the defendants below, as to the defendants)

October 31, 2012 (as to Defendant 6, 7, and Dong Jae-re Co., Ltd.)

Jeju District Court Decision 2010Gahap1315 Decided September 8, 2011

1. Of the ancillary claims of the court of first instance, the part concerning the retirement order of the Plaintiffs falling under the following order to correct the distribution schedule shall be revoked.

Of the distribution schedule prepared by the above court on May 14, 2010 with respect to the distribution procedure case of the Jeju District Court 2010ta-Ma65, the dividend amount of KRW 59,760,595 to Defendant 1 is KRW 41,081,02; KRW 1,139,500 to the Republic of Korea is KRW 783,324; KRW 14,516,040 to the defendant National Health Insurance Corporation; KRW 9,978,731; KRW 488,134 to the defendant 6 is KRW 335,57; KRW 31,697,014 won to the defendant 7; KRW 11,142,515; KRW 7,659,740 to the defendant 1; and KRW 250 to the defendant 2,615 to the dividend amount; KRW 361,641 to the defendant 25; KRW 3629,6147,6945 each;

2. Of the judgment of the court of first instance, the plaintiffs' appeal against the main claim and the conjunctive claim are dismissed in all remaining appeals against the plaintiffs' appeal against the main claim, Korea, the National Health Insurance Corporation, the defendant 6, 7, and the same new company.

3. Of the total litigation costs, the part arising between the Plaintiffs and Defendants 2 and 3 are borne by the Defendants. Of the part arising between the Plaintiffs and Defendants 1, Korea, National Health Insurance Corporation, Defendant 6, 7, and Dong Jae-in Co., Ltd., 3/10 are borne by the Defendants, and the remainder is borne by the Plaintiffs.

1. Purport of claim

A. The primary purport of the claim

Pursuant to the distribution schedule prepared by the above court on May 14, 2010 with respect to the distribution procedure case of the Jeju District Court 2010ta-Ba65, the dividend amount of 59,760,595 won against Defendant 1; the dividend amount of 1,483,420 won against Defendant 2; the dividend amount of 6,904,739 won against Defendant 3; the dividend amount of 1,139,500 won against Defendant 3; the dividend amount of 14,516,040 won against Defendant 6; the dividend amount of 48,134 won against Defendant 7; the dividend amount of 31,697,014 won against Defendant 7; and the dividend amount of 11,142,515 won against Defendant 2,000,000 won to Defendant 3; the Defendants are Jeju District Court excluding Jeju District Court 2010 No.29,000 new Construction Corporation.

B. Preliminary purport of claim

Of the distribution schedule prepared by the above court on May 14, 2010 with respect to the distribution procedure case of the Jeju District Court 2010 Gao65, the dividends of 59,760,595 won against Defendant 1, the dividends of 1,483,420 won against Defendant 2, the dividends of 6,904,739 won against Defendant 3, the dividends of 1,139,500 won to the Republic of Korea, the dividends of 14,516,040 won to Defendant 6, the dividends of 48,134 won to Defendant 7, the dividends of 31,697,014 won to Defendant 7, and the dividends of 11,142,515 won to Defendant 2, and the dividends of 300,700,000 won to Plaintiff 1, 200,700, 307, 307, 2700, 2000.

B. Purport of appeal

The part against the plaintiffs in the judgment of the court of first instance is revoked. It is sought as the same judgment as the written claim.

1. Facts of recognition;

A. On April 30, 2009, Jeju Special Self-Governing Province (hereinafter “Seoul Special Self-Governing Province”) awarded a contract for the construction of a field school and for the repair of a gymnasium (hereinafter “instant construction”) from May 4, 2009 to September 1, 2009, for the construction period of KRW 419,103,070 (the construction cost was increased to KRW 420,623,070, and was reduced to KRW 393,416,000 at a time when completion was completed) and paid KRW 0,000 on May 19, 2009 as advance.

B. Jeju-do was served by creditors of the Han-do on the provisional attachment, seizure, etc. (hereinafter “instant provisional attachment, etc.”) with respect to the claim for the construction price of Jeju-do in the Il-do Construction (hereinafter “instant claim for the construction price”) as shown in the table below.

(2) On June 30, 209, before the date of delivery of the kinds of claims by Defendant 1 1 2, 287, 416, 438, 209 (12) 7,020,000, 30,000 on May 10, 2010, and 4. The National Pension Service of 30,139, 50, 139, 500 on September 9, 2000 (11), 20, 139, 500 on September 24, 200, 201, and 14. The National Pension Service of 30, 201, 139, 50 on September 24, 200, 200, Defendant 6, 10, 200, 12,017, 67, 2010, 205, 2010

C. On August 16, 2009, in the instant construction project, the Japaneseese Construction Co., Ltd. subcontracted 30,000,000 won in water supply, 30,000 won in water supply, 11,740,000 won in water supply for the Plaintiff Hoe Construction, and the painting Co., Ltd. subcontracted 39,00,000 won in water supply for the Plaintiff Geumsung Construction. On September 15, 2009, the Japaneseese Construction Co., Ltd. made a direct payment agreement with the Plaintiffs and notified the fact of the subcontract to Jeju-do with the aforementioned direct payment agreement attached thereto.

D. The Plaintiffs completed the subcontracted project on December 23, 2009, and Jeju-do demanded the Jeju-do to pay the subcontract price in direct form pursuant to the direct payment agreement after conducting a completion inspection on the instant construction project on December 24, 2009. However, Jeju-do deposited the deposited parties on February 9, 2010 with the following questions: (a) the Plaintiffs and Samda Industrial Development Co., Ltd.; (b) Mancheon-si and Newsung Co., Ltd.; and (c) the deposit cause is de facto or legally doubtful as to the validity between the provisional attachment on the instant claim for the construction price and the right to claim direct payment of the subcontract price; (b) Jeju-do deposited the remainder of the construction project in full (c) KRW 393,416,00; (d) KRW 209,00,000; (c) KRW 3,364,60; (d) KRW 3681,684,681,680; (d) the deposit for delay -6086

E. On May 14, 2010, Jeju District Court 2010taga65 Distribution Procedure, the distribution schedule was drawn up with the content that distributes each of the money indicated below to the Defendants on the date of distribution.

Defendant 3 Defendant 27,020,483,426,3426,904,739,310,139,50 aggregate of 14,516,040 National Pension Service by 2 National Pension Service, 14,516,040,040 (3) 14,516,040,003 Defendant 1282,805,479,760,595, and 332,675,3426, 904,739, Defendant 62,310,000,008,1348,1344, 30,000,000, 3150,697, 141, 251, 257, 197, 257, 194, 257, 197, 257, 194

F. The Plaintiffs attended the aforementioned date of distribution and raised an objection to the entire amount of dividends of the Defendants, and subsequently lawfully filed the instant lawsuit on May 24, 2010, within the filing period.

[Ground of Recognition] Unstrifed Facts, Gap evidence Nos. 1, 2, 3, 5, 6 (including paper numbers), Eul evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 2, Eul evidence Nos. 1, 2, 1, 2, and 3, fact inquiries to the Office of Education of Jeju Special Self-Governing Province in the first instance, and the purport of the whole pleadings.

2. Determination as to the legitimacy of the primary claim portion among the lawsuits in this case

Ex officio, we examine the legitimacy of the claim for confirmation of the main claimant deposit holder in the lawsuit of this case.

In order to confirm the legal relations, there is a benefit of confirmation of the legal relations, there is a need to immediately confirm the legal relations of the plaintiff's rights or legal status in accordance with the legal relations, and to eliminate such risk and apprehensions, and it should be the most effective and appropriate means to confirm the legal relations (see Supreme Court Decision 94Da23388, Nov. 8, 1994). In the event of a so-called mixed deposit made by mixing the repayment deposit with the deposit under the Civil Act and the deposit for repayment under the Civil Act, if the dividends were made for any reason, and there is a dispute as to the amount paid or repaid under the distribution schedule with the creditor, it is reasonable to settle the dispute by becoming final and conclusive in a single procedure called a lawsuit of demurrer against distribution. Accordingly, even in this case, even if the deposit was made, a person who asserts that the payment or repayment was not made, despite having the right to receive the payment or repayment, may file a lawsuit of demurrer against the other creditors indicated in the distribution schedule (see Supreme Court Decision 2003Da2945666, Nov. 26, 2006).

As seen earlier, as long as the Plaintiffs had already commenced the distribution of the deposited money for which the confirmation of the right to request payment was sought, and the Plaintiffs had been present on the date of distribution and raised lawful objections against the Defendants, both the Plaintiffs may file a lawsuit of demurrer against the Defendants, who are other creditors indicated in the distribution schedule that they received the distribution in the distribution schedule. As such, the claim for confirmation of the right to request payment of deposited money is merely a circumventive method and cannot be deemed the most effective means to eliminate risks

Therefore, the primary claim part of the lawsuit of this case is unlawful as there is no benefit of confirmation.

3. Determination on the plaintiffs' conjunctive claim against the defendant 2 and defendant 3

Of the distribution schedule prepared by the above court on May 14, 2010 with respect to the distribution procedure case of Jeju District Court 2010ta-Ba65, the plaintiffs asserted that the above defendants should delete each of the above amounts from the above distribution schedule and distribute the deleted amount to the plaintiffs to the plaintiffs in accordance with Article 150 (3) of the Civil Procedure Act. The above defendants shall be deemed to have led to confession pursuant to Article 150 (3) of the Civil Procedure Act.

4. Determination on the Plaintiffs’ conjunctive claim against Defendant 1, Korea, National Health Insurance Corporation, Defendant 6, 7, and Dong Jae-in Co., Ltd.

(a) Occurrence of a direct payment obligation for the subcontract price in Jeju-do;

In full view of Gap evidence 3-3, 4, 6, Gap evidence 19, and 21, the fact-finding results and the purport of the whole pleadings with respect to the Office of Education of Jeju Special Self-Governing Province, the Director General of Jeju-do in charge of the construction of Jeju-do in early August 2009 was asked about the method of paying the construction cost to the subcontractor under provisional attachment of the claim for the construction cost of this case from the managing director of the first Special Self-Governing Province in early August 2009, and informed Jeju-do of the fact-finding's conclusion of the subcontract contract, the Director of Jeju-do in charge of the construction of Jeju-do notified the subcontractor to inform Jeju-do of the subcontract. The Director of Jeju-do in receipt of the documents related to the subcontract payment guarantee or the direct payment agreement, which is an essential document, rejected the subcontract payment guarantee or the direct payment agreement, and the list and form of the documents necessary for the notification in the name of Jeju-do submitted by the plaintiffs in the name of Jeju-do.

In light of the following circumstances revealed through the above recognition: (a) Jeju-do provided a direct payment agreement, etc. to the Il-do Construction in order to hear the speech that the Il-do Construction has no ability to issue a payment guarantee certificate; and (b) Jeju-do received the notification of a subcontract attached with the direct payment agreement to the Il-do Construction in a normal manner; and (c) Jeju-do had been well aware of the subcontractor’s identity until the notification of the subcontract is issued; (d) Jeju-do should be deemed to have made a direct payment agreement with the Plaintiffs and the Il-do in a way that it explicitly consented ex post facto to the direct payment agreement between the Plaintiffs by receiving the notification of the subcontract agreement for Il-do Construction in a normal manner on September 15, 2009.

Therefore, Jeju-do, which is the ordering person, has a duty to pay each subcontract price and its delay damages within the scope of KRW 126,918,450 of the construction cost of this case to the subcontractor, unless there are special circumstances.

As to this, Defendant Republic of Korea and the National Health Insurance Corporation asserted that, even if there was a direct payment agreement, the total annual sales or the number of regular employees in the immediately preceding business year among small and medium enterprise owners prescribed by Article 2(2) of the Fair Transactions in Subcontracting Act, who are more than the number of other small and medium enterprise owners entrusted with the manufacture, etc., and thus, they cannot be the contractor who is the premise of direct payment agreement, and thus, they cannot claim a direct payment of the subcontract price in Jeju-do. However, the Plaintiffs' right to claim a direct payment of the above low-do subcontract price against Jeju-do is a direct payment claim as prescribed by Article 35(2) and (3) of the Framework Act on the Construction Industry. Thus, the above Defendants' above assertion is without merit.

B. Determination as to the defendants' defenses, etc.

(1) Defendant 1 and Korea’s defense

(A) Defendant 1 and Korea, before making a direct payment agreement with the Plaintiffs, have already been made, and there was no defense that some enforcement creditors, including Defendant 1, etc. could not oppose the said provisional attachment right holder as they provisionally attached the instant claim for the construction price.

Where a third-party creditor of the prime contractor has preserved a claim against the ordering person by seizure, provisional seizure, etc. before a cause for direct payment of the subcontract price occurs, the claim executed and preserved shall not be extinguished notwithstanding the direct cause for payment of the subcontract price that occurred thereafter (see Supreme Court Decision 2001Da64769, Sept. 5, 2003).

On September 15, 2009, the direct payment agreement was reached between the plaintiffs, Il Il Construction, and Jeju-do. Defendant 1 et al., the executing creditors, made a total of 12 seizures (dispositions) or provisional seizures as stated in the table of Paragraph 1. before and after the date of the direct payment agreement between the plaintiffs. The provisional seizure claim amount of Defendant 1 by the creditor stated in Nos. 1 above was 287,416,438, as acknowledged earlier. The above claim amount exceeds KRW 126,918,450 of the construction price of this case, which is the scope of the payment of the subcontract price under the direct payment agreement. Thus, the defense of the above defendants is justified.

(B) On the other hand, the plaintiffs asserts that, once again, Defendant 1's claim for the payment of subcontract consideration in accordance with Article 103 of the Civil Code and the good faith principle is false claims, which are the largest value of Defendant 1's claim for the construction arising before the agreement on the direct payment of subcontract consideration was made, and that the provisional attachment is not effective against Jeju-do.

The descriptions of Gap evidence Nos. 10 through 18, and 22 (including each number) are not enough to acknowledge the above assertion, and there is no other evidence to acknowledge it.

(2) The plaintiffs' second defense

(A) Prior to the direct payment agreement, the Plaintiffs are effective only for the instant claim for construction payment that occurred until the date of the direct payment agreement on the Jeju-do Construction. However, there was no possibility that the mining construction was completed prior to the direct payment agreement. As attachment and provisional attachment after the direct payment agreement expired due to the termination of the instant claim for construction payment, there was no claim for the construction payment that is subject to provisional attachment. Accordingly, the said Defendants cannot oppose the Plaintiffs due to the provisional attachment, etc.

According to the statements in Gap evidence 6-32 to 43, the object of provisional attachment by defendant 1, who is the execution creditor, can be acknowledged that the object of provisional attachment by defendant 1, which is the execution creditor, is the claim for the construction price to be paid from Jeju-do after executing and completing the construction work and the object of provisional attachment by the remaining execution creditors, also the object of provisional attachment. The object of provisional attachment by the execution creditor, includes not only the claim for the construction price already incurred but also the claim for the construction price to be incurred in the future. If there is a direct payment agreement after provisional attachment as alleged by the plaintiffs, if there is a direct payment agreement after provisional attachment, it is against the validity of provisional attachment as it infringes on the rights of the right holder of the provisional attachment already occurred, and further, if the provisional attachment or attachment is made with respect to the contractor's claim for the construction price, it is unreasonable that the contractor might escape the provisional attachment or attachment by receiving the sewage to avoid this, and therefore, the reorganization by the plaintiffs

(B) Since the execution creditors did not seize the Plaintiffs’ labor cost claims arising from subcontracted construction in accordance with Article 88 of the Framework Act on the Construction Industry and Article 84 of the Enforcement Decree of the same Act, the provisional attachment of this case on the instant claim for the construction cost including the above labor cost, the execution creditors’ portion corresponding to the above labor cost among the provisional attachment of this case is null and void, and therefore, the deposit of this case in Jeju-do is null and void.

In Article 88 of the Framework Act on the Construction Industry and Article 84 of the Enforcement Decree of the Framework Act on the Construction Industry, the prohibition of seizure on the amount equivalent to wages to be paid to workers of the construction work in question out of the contract amount of the construction work for which the constructor receives a contract, is derived from the demand of social security under the Constitution to guarantee workers' right to survival minimum. Since the Labor Standards Act which recognizes workers' right to preferential payment of wages and other provisions to guarantee workers' livelihood stability is also another provision to guarantee workers' right to preferential payment, an order of seizure on a claim the seizure of which is prohibited shall be null and void due to a violation of compulsory law. If a seizure which is the premise of a collection order becomes null and void, the collection order based on the seizure shall not be deemed null and void under the procedural law (see Supreme Court Decision 2008Da11702, Jun. 12, 2008).

The fact that Jeju-do paid KRW 209,00,00 as advance payment on May 19, 2009 after entering into a contract for the construction of this case from May 4, 2009 to September 1, 2009 is acknowledged as above. The above fact that Jeju-do paid KRW 209,00,000 which corresponds to 1/2 of the construction cost as advance payment on May 19, 2009 shall be included in the evidence No. 6-18,22,30, and 24 to 26 of the Jeju-do Office of Education, and the fact that the first instance court’s first instance court’s inquiry into the outcome of the first instance Office of Education regarding the construction of this case’s 10,010,00 won for the above construction of 419,103,07,900 won for the construction of this case’s 20,000 won for the above advance payment for the construction of this case’s 20.

(C) The Plaintiffs deposited the amount less than the actual construction price with the advance interest, damages for delay, and warranty bond deducted from the total construction price as the construction price, which is the cause arising between Jeju-do and Jeju-do. Furthermore, according to the construction standard contract between Jeju-do and the Il Il Construction, if there is a direct payment agreement, it may be said that the subcontract price subject to the direct payment agreement was an exceptional settlement agreement to exclude the details of the instant construction price subject to advance payment from the details of the instant construction price subject to advance payment. Thus, the deposit of the amount deducted from the advance payment is justified.

According to the general conditions of a local government’s construction contract, where a contract is terminated or terminated due to a cause attributable to the other party to the contract, the parties to the contract may offset the balance of the advance payment and the unpaid amount of the completed portion. However, where the payment guarantee of the subcontract price is not provided under the Framework Act on the Construction Industry and the Fair Transactions in Subcontracting Act and the payment guarantee of the subcontract price is not provided under the provisions of the Fair Transactions in Subcontracting Act, it can be acknowledged that a direct payment of the subcontract price may offset the unpaid amount of the completed portion if there is a balance of the subcontract price after the payment of the subcontract price. The above provision can be seen as an exceptional settlement agreement to exclude the amount equivalent to the payment of the subcontract price from the details of the original construction price covered by the advance payment (see Supreme Court Decision 2007Da31211, May 13, 2010).

However, as seen earlier, Jeju-do deposited the remainder of the construction cost after completion of the entire construction work of this case including the part of the plaintiffs' subcontracted construction work and completion of the completion inspection. The advance payment after Jeju-do was deducted from Jeju-do cannot be deemed as the case where the grounds for returning the unpaid amount occur due to the cancellation or termination of the construction contract or the termination of the contractual relationship. Thus, the above provision that the direct subcontract price shall take precedence over the remainder of the advance payment and the amount payable for the completed portion cannot be deemed as having been applied. Accordingly, the re-claim of this case is without merit.

(c)the scope of the obligation to pay labor costs;

The plaintiffs may make a direct claim against Jeju-do only for the portion of their respective labor cost for which the provisional seizure, etc. of the enforcement creditors in this case is invalidated. Since the plaintiffs completed subcontracted construction on December 23, 2009 and paid 10,010,000 won which the plaintiff east-gu east-si east-si east-do, 9,707,900 won, and 20,020,000 won which the construction of the plaintiff Gyeongsung-do was null and void, Jeju-do has the obligation to pay the plaintiffs the above labor cost equivalent to the above labor cost.

(d) Correction of a distribution schedule;

(1) Meanwhile, the plaintiffs asserted that the provisional attachment against the above portion of the labor costs in this case is null and void, and that the commencement of the above distribution procedure based on the mixed deposit is null and void as it was commenced without the combination thereof being resolved, and that the total amount of the dividend against the above Defendants should be deleted.

Since the provisional attachment, etc. of this case is null and void for enforcement creditors of the above part of the plaintiffs' labor costs of KRW 127,131,957, which is the 127,131,97, which is the amount of deposit in Jeju-do, after deducting deposit fees, etc. from the amount of deposit, the deposit in Jeju-do also has the nature of the repayment deposit for the plaintiffs, the execution creditor, and the part of the execution deposit for the defendants, the execution creditor, and it is unlawful that the distribution was made by deeming the distribution foundation as the distribution foundation. However, in the case of the so-called mixed deposit with the payment deposit in accordance with the Civil Act, the distribution was made for any reason, and if there is a dispute with the creditors as to the amount of payment or repayment in the distribution schedule, it is reasonable to resolve the dispute once through a single procedure, which is the object of objection against the distribution. Therefore, even in this case, the plaintiffs' assertion that payment or payment was not lawfully made within the distribution schedule can not be seen as legitimate in the above part of the plaintiffs' objection against the distribution claim against the other creditors.

(2) Furthermore, as to the distribution schedule that is distributed to the Plaintiffs and that is to correct the Defendants’ dividends, the sum of the Plaintiffs’ labor costs of KRW 39,737,90 (=10,000 + KRW 9,707,900 + KRW 20,000 + KRW 20,000) takes precedence over the Defendants’ claims, which are enforcement creditors. As such, once it is divided in proportion to the Defendants’ claims against the Defendants, the amount of dividends of both Defendants 2 and 3 are calculated by adding up all the amount to be distributed to the Plaintiffs (the amount deleted below) (the amount to be distributed to the Plaintiffs).

Defendant 1, Defendant 23 National Pension Service of the Republic of Korea, Defendant 6, Defendant 7, Defendant 5 and Defendant 7, 59,760, 595, 1,483, 483, 420, 6204, 739, 139, 500 14,516,040, 488, 340, 3134, 697, 1142, 515, 127, 131, 679, 463, 6762, 298, 297, 357, 176, 376, 537, 537, 497, 97, 975, 974, 97, 975, 975, 97, 97, 197, 197, 397, 9747, 975

In addition, with respect to the amount to be distributed to the plaintiffs, the amount of dividends as indicated below shall be determined according to the ratio of each plaintiffs' recognized amount of KRW 39,737,90 to the aggregate amount of KRW 45,504,155 to the sum deleted from the above table:

Amount recognized as the plaintiff of the table contained in the main sentence, 20,000 11,462,52,523 Mate Construction 9,707,900 11,16,586, 20,020,000 22,925,046, 39,737,900 45,504,155

5. Conclusion

Therefore, the distribution schedule prepared by the above court on May 14, 2010 with respect to the distribution procedure case of Jeju District Court 2010 other 65 won, 59,760,595 won for defendant 1,081,081,00 won for dividends of 1,139,50 won for defendant 1,724 won for dividends of 783,324 won for defendant Republic of Korea, 14,516,040 won for dividends of 9,978,731 won for defendant National Health Insurance Corporation, 48,134 won for 335,57 won for defendant 65, 200 won for dividends of 31,69,78,014 won for defendant 7, 21,789,412 won for each of the above dividends of 1,420 won for defendant 1,615,714,767,719, and 264,7194,7.

Therefore, the main claim part of the judgment of the court of first instance is just in conclusion. Thus, the appeal against the main claim of the plaintiffs is dismissed as it is without merit. Since the part of the appeal against the conjunctive claim of the court of first instance, which constitutes the part of the plaintiffs' retirement order for correction of the distribution schedule, is unfair in conclusion, the part of the appeal against the plaintiffs, which constitutes the part of the conjunctive claim of the court of first instance, is accepted in part, and it is revoked. However, this case has been deliberated to the extent that the judgment can be rendered on the merits, and therefore, the court of first instance ordered correction of the distribution schedule by itself pursuant to the proviso of Article 418 of the Civil Procedure Act, and ordered correction of the distribution schedule as above. The remaining part of the appeal against the plaintiffs against the defendant 1, Republic of Korea, the National Health Insurance Corporation, the defendant 6, 7, and the same case is dismissed only in this case where only the plaintiffs appealed the judgment of the court of first instance to the disadvantage of the plaintiffs, which is the appellant under the principle of

Judges Lee Jin-Gyeong (Presiding Judge)