In a case where the representative of a joint venture with the method of joint performance submits to the contractor a joint supply and demand agreement containing an agreement of the members of the joint venture with regard to the division of the contract price claims pursuant to Article 11 of the Guidelines for the Management of the Joint Contract amended on January 8, 1996, together with a written application for participation in the contract, whether there may be an implied agreement between the joint venture and the contractor for the payment that the individual members of the joint venture shall directly acquire the claim

[Majority Opinion] (A) Since a joint venture basically has the nature of a partnership under the Civil Act, a claim against a subcontractor due to the execution of a construction work by a joint venture shall, in principle, be vested in the members of a joint venture, and barring any special circumstance, one of the members is not entitled to claim payment according to the share ratio from the subcontractor at will, and a claim against one of the members shall not be subject to compulsory execution against the claim against the subcontractor by the joint venture. However, as the joint venture and the subcontractor agree to acquire the right against the subcontractor in accordance with the share ratio, the claim against the subcontractor in relation to the construction work contract may be divided into shares ratio among the members of the joint venture and the aforementioned agreement may be made explicitly and explicitly.

(B) It is reasonable to deem that a joint supply and demand agreement in which members of a joint supply and demand agreement are directly paid the price for work or the price for work completion by each member of a joint supply and demand agreement, barring any special circumstance, is an agreement between the members of a joint supply and demand agreement in relation to the subcontractor, and it is reasonable to deem that the joint supply and demand agreement in which each member of a joint supply and demand agreement wishes to acquire the claim for work payment by classifying them according to the share ratio, barring any special circumstance. Furthermore, if the representative of a joint supply and demand agreement plans to pay the claim for work payment to each member of a joint supply and demand agreement in accordance with Article 11 of the Guidelines for the Management of the Joint Contract amended on January 8, 196, along with a written application for participation in the joint supply and demand agreement in which the members of the joint supply and demand agreement stipulate that the joint supply and demand agreement shall be submitted, without any particular objection, and if the contract is concluded after the receipt of the contract without any specific objection, it shall be deemed that the individual member of the joint supply and demand has been made.

[Concurring Opinion by Justice Kim Nung-hwan, Justice Min Il-young, and Justice Lee In-bok] (A) A joint supply and demand company in the method of joint performance and an agreement that requires each member of the contractor to acquire a claim for the construction cost directly against the contractor in accordance with the share ratio is reasonable to recognize the existence of the agreement only where Article 11 of the Guidelines for Joint Contract Management after the amendment of January 8, 1996 stipulates that the payment of the work cost shall be made by classifying each member and directly

(B) The guidelines for the management of the joint contract itself is merely a internal regulation of a country which determines matters necessary for the management of contracts to be observed by the relevant public officials in order to handle the contractual relationship with a private person in a fair, reasonable and efficient manner, and does not directly regulate the rights and obligations of the contracting body or its members. Therefore, even if the contracting officer plans to pay the cost of the contract in accordance with Article 11 of the guidelines for the management of the joint contract by classifying the price of the contract into the members in proportion thereto, it is merely an intention of the contracting officer to comply with the internal regulations of the country concerning the management of the joint contract, and it cannot be said that the contracting officer has expressed his intent to have the individual members acquire rights to the claim for the payment of the contract, unless it is not the content of the contract, it does not affect the validity of the joint contract even if the contracting officer does not comply with the guidelines for the payment of the contract, and it shall not be deemed that the contractor is liable for the other party to the contract. However, if the contractor who has received the contract directly receiving the payment of the contract by each member of the joint contractor is more active in accordance with Article 111.

Articles 105, 272, 664, 703, and 704 of the Civil Act; Article 25 of the Act on Contracts to Which the State is a Party; Article 72(1) of the former Enforcement Decree of the Act on Contracts to which the State is a Party (amended by Presidential Decree No. 20720, Feb. 29, 2008); Article 5, Article 11 (see current Guidelines for Management of Joint Contracts) of the former Guidelines for Management of Joint Contracts (amended by Presidential Decree No. 20720, Feb. 29, 2008); Article 5, Article 11 (see current Guidelines for Management of Joint Contracts) of the former Guidelines for Management of Joint Contracts (amended by Presidential Decree No. 20720, Jan. 8, 1996); Article 8 [Separate Rule for Management of Joint Contracts]

Supreme Court Decision 97Da4401 delivered on August 26, 1997 (Gong1997Ha, 2821) Supreme Court Decision 2000Da32482 delivered on November 24, 200 (amended) Supreme Court Decision 99Da49620 Delivered on December 12, 200 (Gong2001Sang, 276) Supreme Court Decision 2000Da68924 Delivered on February 23, 2001 (Gong201Sang, 762) Supreme Court Decision 201Da33604 Delivered on December 111, 201 (Gong2002Sang, 2566)

Korea Development Co., Ltd. and two others (Law Firm New Light, Attorneys Gangnam-gu et al., Counsel for the plaintiff-appellant)

Environmental Management Corporation

Korea

Korea Labor Welfare Corporation

Seoul High Court Decision 2009Na49799 decided November 25, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. Since a joint supply and demand organization basically has the nature of a partnership under the Civil Act (see Supreme Court Decisions 9Da49620, Dec. 12, 2000; 9Da49620, Dec. 12, 200), a joint supply and demand organization's claim against a contractor due to the execution of a construction project belongs to the members of a joint supply and demand organization in principle, and barring any special circumstance, one member is not entitled to claim payment at will against a contractor at the rate of investment shares, and a joint supply and demand organization's claim against a contractor cannot be subject to compulsory execution against the contractor's claim against a contractor of a joint supply and demand organization whose member is an individual (see Supreme Court Decisions 97Da4401, Aug. 26, 1997; 200Da68924, Feb. 23, 2001). However, a joint supply and demand organization and a joint supply and demand organization's claim for construction project's share in shares can be explicitly divideded by 1301.

B. Article 25 of the Act on Contracts to Which the State is a Party (hereinafter “State Contracts Act”) provides that the head of each central government agency or the public official in charge of contracts may enter into a joint supply and demand agreement with at least two parties to the contract, if deemed necessary for construction, manufacturing, or other contracts. Article 72(1) of the former Enforcement Decree of the State Contracts Act (amended by Presidential Decree No. 20720, Feb. 29, 2008) provides that the method of entering into a joint contract under Article 25 of the State Contracts Act and other necessary matters shall be prescribed by the Minister of Finance and Economy. Article 5 of the Guidelines for operating the joint contract, which is the rules established by the Ministry of Finance and Economy, established by delegation, provides that the public official in charge of contracts, shall prepare a joint supply and demand agreement by referring to the standard form of joint supply and demand agreement specified in the public notice of tender [Attachment 1] or [Attachment 2] [Attachment 2] (Joint Implementation Method] (hereinafter referred to as “joint supply and demand agreement”).

On the other hand, Article 11 of the Guidelines for the Management of Joint Contract, which provides that a contracting officer shall pay advance payment, consideration, etc. to the representative of a joint contractor, was amended on January 8, 1996 as follows and enforced on the same day. In other words, Article 11(1) main text provides that "a contracting officer shall, in paying advance payment, etc., have the representative of a joint contractor, submit an application entered in the classification of each member of the joint contractor in advance payment." However, Article 11(2) provides that "the contracting officer shall pay the amount requested to the representative of the joint contractor upon request under paragraph (1), and in the case of advance payment or completion payment, the payment shall be made to each member of the joint contractor, respectively." Article 11 of the Guidelines for the Management of Joint Contract has been amended by classifying the amount of the joint contractor's request for payment to each member of the joint contractor by the joint contractor and the guidelines for the management of the contract has been amended by 11 of the new Guidelines for the Management of the Contract to the same purport."

Since January 8, 1996, Article 11 of the Guidelines for the Management of Joint Contract was amended and implemented as a result of the amendment of Article 11 to the terms of direct payment of the price, etc. to each member of the joint supply and demand organization separately, Article 11 of the Guidelines for the Management of Joint Contract applies to the joint contract concluded after January 8, 1996. A contractor is expected to pay the price, etc. directly to each member of the joint supply and demand organization in proportion to his share ratio. The members of the joint supply and demand organization are also obligated to pay the price, etc. directly in accordance with the joint supply and demand agreement, which is a contract between them. The members of the joint supply and demand organization also have referred to in Article 8 of the Guidelines for the Management of the Joint Supply and Demand Contract (Separate 1) of the revised Guidelines for the Joint Supply and Demand Agreement (Joint Implementation Method).

Therefore, it is reasonable to view that a joint supply and demand agreement in which the members of a joint supply and demand agreement in the joint supply and demand method directly receives the payment for work price, etc. for each member of the joint supply and demand organization is an agreement between the members of the joint supply and demand organization to acquire the claim for work price by dividing it according to the ratio of their shares, barring any special circumstances. Furthermore, if the representative of the joint supply and demand organization plans to pay the claim for work price to each member of the joint supply and demand organization pursuant to Article 11 of the revised Guidelines for the Management of Joint Contract, he/she shall submit a written joint supply and demand agreement in which the members of the joint supply and demand organization intend to pay the claim for work price to each member of the joint supply and demand organization pursuant to Article 11 of the revised Guidelines for the Management of Joint Supply and Demand, along with a written application for participation, and if the contractor receives it without reservation any particular objection and then concludes a joint contract, he/she shall be deemed to have made an implied agreement between the joint supply and demand organization and the subcontractor to acquire the right to each member.

C. The Supreme Court Decision 200Da32482 Decided November 24, 200, etc., which held that in a case where a joint supply and demand agreement concerning a joint supply and demand agreement was submitted with the content of the agreement to be directly paid by each member of the joint supply and demand organization in the manner of joint supply and demand as to the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment, etc. to each member of the joint supply and demand organization, after January 8, 1996, which entered into force under Article 11 of the revised Guidelines for the Joint Management of Contracts Act, the payment of the payment of the payment of the payment shall be

2. According to the reasoning of the judgment below, the court below determined as follows: (a) the joint supply and demand company of this case constitutes a partnership under the Civil Act, and further, (b) the claim for construction price of this case is a partnership under the Civil Act, based on the consideration of the circumstances as stated in its reasoning, that the joint supply and demand company of this case constitutes a partnership under the Civil Act.

However, according to the facts established by the court below and the evidence duly admitted by the court below, Article 11 of the Guidelines for the Management of Joint Contract (the Accounting Rules 2200.04-136-11, August 16, 2004) provides that the contract for the construction work in this case shall be paid to each member of the joint supply and demand organization upon a request from the representative of the joint supply and demand organization to divide the amount of the contract into the joint supply and demand organization. The joint supply and demand organization of this case shall be submitted to the defendant and the contract for the construction work in this case shall be deemed to have been concluded. In light of the above legal principles, it is reasonable to view that the joint supply and demand organization of this case and the defendant shall have an implied agreement that the members of the joint supply and demand organization of this case acquire rights to the defendant directly in accordance with the ratio of their share in the contract for the construction work (the contract in this case shall be deemed to have been incorporated into the joint supply and demand organization of this case as part of the contract in this case's form of construction work.

Nevertheless, the court below held that the claim for construction price of this case is a partnership claim which belongs to all members of the joint venture of this case and thus the seizure of each claim against the defendant joining the defendant was null and void. In this case, the court below erred by misapprehending the legal principles as to the reversion of the claim for construction price in joint venture of the joint venture of the joint venture of this case, which affected the conclusion of the judgment

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges, in addition to the separate opinion by Justice Kim Nung, Justice Min Il-young, and Justice Lee In-bok.

4. Concurrence by Justice Kim Nung-hwan, Justice Min Il-young, and Justice Lee In-bok

A. In principle, the claims held by the joint venture against the contractor shall be reverted to the members of the joint venture, in principle, to the subcontractor. However, the majority opinion is consistent with the majority opinion in that the joint venture and the subcontractor agree that each member of the joint venture may be divided into their shares in accordance with the contents of the construction contract, such as where the joint venture and the subcontractor agree to acquire the rights to the subcontractor directly in accordance with their shares in relation to the claims arising from the construction contract.

However, with respect to the claim for the construction price against a contractor, it is difficult to agree with the Majority Opinion that, on the premise that the joint supply and demand agreement under which each member of the joint supply and demand organization directly receives the payment excluding the advance payment for each member of the joint supply and demand organization by classifying the claim for the construction price according to the ratio of his/her equity shares, and that if the joint supply and demand organization receives a written joint supply and demand agreement containing the above contents of the agreement and concludes a joint contract, it is difficult to agree with the Majority for the following reasons.

B. It is reasonable to recognize the existence of an agreement in which a joint venture in the method of joint performance and a contractor have a separate member acquire a claim for the work price against a contractor directly in accordance with their share of shares, only where Article 11 of the Guidelines for Management of the Joint Contract after the amendment of January 8, 1996 stipulates that the payment of the work price shall be made by classifying the members and directly.

(1) The amendment of Article 11 of the Guidelines for Joint Contract Operation on January 8, 1996 requires that the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment to the members or the payment of the payment of the payment of the payment of the payment of the payment. In addition, in accordance with the purport of the amendment, Article 8 of the above Guidelines for Joint Payment and Benefit (Attachment 1) of the Terms and Conditions for Joint Payment (Joint Payment) changed into the phrase "the payment of the payment of the payment of the payment of the payment or the payment of the payment is paid to the representative of the joint supply and demand or to each member of the following account (hereinafter referred to as "each transaction account"), and the majority opinion stated that the payment of the payment of the payment is the same.

(2) The guidelines for the management of the joint contract itself is merely a internal regulation of the country which determines matters necessary for the State to perform the contractual affairs to be observed by the relevant public officials in order to handle the contractual relations with private persons fairly, rationally and efficiently (see Supreme Court Decision 2001Da33604, Dec. 11, 2001, etc.). It does not directly regulate the rights and obligations of the joint contractor or its members. Therefore, even if the public official in charge of contracts plans to pay the price, etc. directly to each member according to Article 11 of the Guidelines for the Management of the Joint Contract, it is merely an intention of the public official in charge of contracts to comply with the internal regulations of the country concerning the management of the joint contract affairs, and it cannot be deemed that the public official in charge of contracts expressed the intent of the individual member of the joint contractor to acquire the right to directly the right to the claim for the payment of the contract, so long as it is not the content of the contract, it does not affect the validity of the joint contract even if the contractor does not comply with the contract.

However, it is not limited to the case where a contractor who has ordered a government-funded construction work and received a written joint supply and demand agreement in which each member of a joint contractor is directly paid the payment of the construction cost in accordance with Article 11 of the Guidelines for the Management of Joint Contract, and further, the case where Article 11 of the Guidelines for the Management of Joint Contract is actively incorporated into the contents of the contract through the provisions of the documents attached thereto included in the contents of the joint contract. In such a case, beyond the fact that the contractor simply has an intention to comply with the internal regulations on the payment of the construction cost claim, it shall be deemed that the contractor explicitly expressed his intention to have each member of the joint supply and demand contractor acquire rights to the directly contractor in accordance with his share of the construction cost claim, and only in such a case, the claim for the construction cost belongs to the individual member

(3) Considering that Article 11 of the Guidelines for Management of Joint Contract is different from the subject and form of the claim for construction cost depending on whether the contract is included in the contents of the joint contract, it would not only be faithful to the theory of contract law, but also be in accordance with the principle of freedom of contract by allowing a contractor who places an order for a government-funded construction project to use the claim for construction cost as construction cost and to facilitate smooth execution, or by incorporating the claim for construction cost into a joint contractor without being leaked to the outside of the joint contractor, or by allowing the parties to a contract to get out of complicated legal relations through an execution deposit in case of seizure competition, etc. by converting the claim for construction cost into individual bonds of each party.

C. (1) According to the facts established by the court below, according to the majority opinion, Article 11 of the Guidelines for the Management of Joint Contract (established Accounting Rules 2200.04-136-11, August 16, 2004) was incorporated into the contents of the instant construction contract pursuant to Article 24. In light of the above legal principles, it is reasonable to view that the instant joint supply and demand company and the Defendant, by incorporating Article 11 of the Guidelines for the Management of the instant joint contract into the construction contract of this case, have agreed to have each of the members of the instant joint supply and demand company acquire rights directly to the Defendant according to their respective shares in the construction contract of this case. Thus, the members of the instant joint supply and demand company have acquired at least the construction price claim attributed to each of the Defendant separately according to their shares in relation to the Defendant.

(2) Nevertheless, the court below held that the claim for the construction price of this case is a partnership bond which belongs to the members of the joint contractor of this case and thus the seizure of each claim by the defendant joining the defendant is null and void. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the reversion of the claim for the construction price where the joint contractor management guidelines were incorporated

D. As above, I agree with the conclusion of the majority opinion on the grounds as above, but I agree with the separate opinion on the grounds of its reasoning.

Justices Yang Sung-tae (Presiding Justice)