2011Na 4835 Verification of Claim for Payment of Deposit

1. A stock company;

Representative Director 000

2. B;

Representative Director 000

3. C:

Representative Director 000

4. Daehan:

Representative Director 000

Plaintiffs (Law Firm 00, Attorneys 000)

1. The jurisdiction of the Republic of Korea (the central office of the 00 Regional Maritime Port Authority Act);

Legal representative, the Minister of Justice, and the Minister of Justice

Litigation performers 000,000

2. E:

3. F;

4. Company G.

Representative Director 000

5. H;

6. I

8. K;

9. L.

10. Stock Companies M

Representative Director 000

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

Defendant 8. Public-service advocates 000

7. J Co., Ltd.

Representative Director 000

Daegu District Court Decision 2009Da14313 Decided June 23, 2011

February 29, 2012

March 21, 2012

1. Of the judgment of the court of first instance, the part against the Defendants (including the designated parties) shall be revoked.

2. On March 13, 2009, 165,08, 33,484,300 won deposited by the Daegu District Court No. 1504 of 1902, 424, 180 won, 165, 08, and 00 won, the Plaintiff Company A, 350, 350, 414, and 00 won, the Plaintiff Company C, 18, 000 won, and 188, 000 won, shall be confirmed to have the right to claim the withdrawal of each deposit against the Plaintiff Company.

3. The total cost of the lawsuit shall be borne by the Defendants (including the designated parties).

The order is as set forth in the text.

1. Basic facts

A. On May 23, 2007, R Co-Defendant Co-Defendant of the first instance trial: (a) was awarded a contract for the construction work of the △-gun General Welfare Center from the Gyeong-do, Chungcheongnam-do (hereinafter “new construction work of this case”); (b) the construction work period of KRW 3,092, 462, 910; and (c) the construction period of the new construction work from May 23, 2007 to September 3, 2008.

B. During the instant new construction, R Co., Ltd.: (a) during the instant new construction work, the machinery and equipment construction work shall be KRW 380 million on September 17, 2007; (b) the construction work price of KRW 63,484, and KRW 300 on July 10, 2008; and (c) the construction work price of KRW 480,414, and KRW 00 on July 11, 2008; (b) the Plaintiff Co., Ltd. and the Plaintiff Co., Ltd. entered into a subcontract for each of the Plaintiff D Co., Ltd. with fixing the construction work price of KRW 480,414, and KRW 00 on July 11, 2008; (c) the wooden Corporation, the swimming Corporation, and metal construction work of KRW 2130,000 on August 1, 208.

C. The plaintiffs and R. R. Dol-gun Co., Ltd. are immediately after each subcontract, from July 15, 2008 to August 2008.

29. During the period of each of the above subcontract consideration payments, the △-gun, the ordering person, prepared a written agreement on direct payment of the subcontract consideration (direct payment) with the content that the subcontractor shall directly pay the subcontract consideration corresponding to the portion executed by the subcontractor to the subcontractor at the time of payment of the progress payment or the completion payment. (No. 2, No. 3, No. 1, No. 4, 5, hereinafter referred to as “each of the instant direct payment agreements”).

D. The new construction of this case was completed on September 26, 2008, and before the completion of the construction, R Co., Ltd. paid 78,500,000 won as the subcontract price for the Plaintiff Co., Ltd., and Mari-gun on September 12, 2008.

According to the above direct subcontract consideration under the above direct payment agreement, the amount of KRW 141,412,00 for the Plaintiff Company A, KRW 30 million for the Plaintiff Company B, KRW 130 million for the Plaintiff Company C, KRW 25 million for the Plaintiff Company, and KRW 25 million for the Plaintiff Company, respectively. On March 13, 2009, the Daegu District Court No. 1504 of the Daegu District Court of March 13, 2009 [No. 1504] for the Plaintiff Company A, KRW 141,412,00 for the direct payment, KRW 30,00 for the Plaintiff Company B, and KRW 130,00 for the Plaintiff Company C, and KRW 25,00 for the claim transfer provisional seizure.

A statutory provision: Article 248(1) of the Civil Execution Act, Article 487 of the Civil Act) deposited KRW 902,424,180 as the remainder of the new construction work of this case (hereinafter “the deposit money of this case”).

E. Until September 26, 2008, the date of completion of the new construction of this case, the sum of 51,508,995 won (Defendant Republic of Korea 8, 292, 560 won, S23, 216, 435 won, T2, and 20 million won; hereinafter “pre-paid claim of this case”).

F. The remaining Defendants except the Defendant Republic of Korea were all creditors of RR, who received a provisional attachment, a claim attachment and assignment order, or a claim attachment and collection order as to the claim for the construction price against the △ group of RR Co., Ltd., and the above Defendants’ provisional attachment and seizure order were all served to 1/100 after October 1, 2008.

[Ground of recognition] The non-contentious facts, Gap evidence 1 through 16 (including branch numbers), Eul evidence 1 and 2, Eul evidence 1 and 2, U and V testimony of the first instance court, fact inquiry results of the first instance court's fact inquiry into the △ group, the purport of the whole arguments, and the purport of the whole arguments.

2. The parties' assertion

A. (1) At the time of the formation of each of the instant direct payment agreements, there was a duty of direct payment of the subcontract price to the Plaintiffs of the U.S. military at the time of the formation of the instant direct payment agreements, and since the construction price for each of the Plaintiffs’ respective subcontract parts among the current and future subcontract price claims against R, Ha-gun, Inc. was transferred to the Plaintiffs, the right to claim direct payment of the Plaintiffs, rather than the Defendants who acquired bonds or provisionally attached bonds, shall prevail. (2) Even if not, at least, the Plaintiffs completed each of the subcontract works of the instant case.

26. After the provisional attachment decision, the plaintiffs' direct payment claim takes precedence over the creditors. (3) Accordingly, the plaintiffs' direct payment claim amounting to the amount equivalent to the subcontract price of the plaintiffs (the plaintiff corporation A: 165,08,00 won, the plaintiff corporation B: 33,484,300 won, the plaintiff corporation C: 350,414,000 won, and the plaintiff corporation D: 188,000 won, and 188,000 won) out of the deposit money of this case is against the plaintiffs.

B. The Defendants’ respective direct payment agreements are effective only with respect to the part of which payment for completed portion was made at the time, and the above direct payment agreement does not transfer the claim for the construction price of RR to the Plaintiffs. Therefore, the Plaintiffs’ assertion that the above direct payment agreement is effective is without merit.

3. Determination:

A. Relevant legal principles

According to the purport of the Fair Transactions in Subcontracting Act, in cases where the ordering person, the prime contractor, and the subcontractor agree to pay the subcontract price directly to the subcontractor, the ordering person shall pay the subcontractor the contract price directly to the extent that the subcontractor actually executes or completes the construction work, and if the intent of the parties is to not pay the contract price to the prime contractor, it is reasonable to interpret that the obligation to pay the principal contractor directly to the subcontractor at the time when the payment for the construction work by the subcontractor occurs and within the scope of the obligation to pay the principal contractor is extinguished. Thus, the issue of whether the order of seizure as to the payment for the construction work can be asserted within the scope of the subcontract price corresponding to the portion of the subcontractor’s construction work by the prime contractor to the execution creditor prior to the arrival of the ordering person, and the extent of the expiration thereof, etc. (see, e.g., Supreme Court Decisions 2007Da54108, Feb. 29, 2008; 207Da517, Nov. 29, 2007).

B. In the instant case

First, in full view of the above facts and quoted evidences, the plaintiffs, R and D were 0.20 won for each of the instant direct payments agreements that the plaintiffs performed after the conclusion of each of the instant subcontract, and the amount equivalent to the construction cost that the plaintiffs performed is 902, 424, 180 won for the non-payment of the construction cost to R., and the prior claims of this case transferred or notified provisional seizure by the time of completion are 51,508,995 won for the total amount of 736,986, 300 won for the plaintiffs [165,08, 000 won for the plaintiffs, 78, 500 won - 78, 500 won for the plaintiffs - 140, 300 won for the non-payment of the construction cost of this case + 304,300 won for the plaintiffs - 30,400 won for the non-payment of the construction cost of this case

According to the above recognition circumstances, △-gun, the ordering person of the new construction of this case, has no separate demand for direct payment by preparing each of the instant direct payments agreements with R Co., Ltd., the original contractor, and the plaintiffs, who are subcontractors, even if there is no separate demand for direct payment, the plaintiffs are obligated to pay each of the subcontract price directly to the plaintiffs at the time of completion of each of the subcontracted construction of this case (finally before September 26, 2008), and the obligation to pay the construction price to R Co., Ltd. within the scope of this case was extinguished. The total amount of the construction price claims of 736,986,300 won, including the bonds transferred by the defendant and the bonds transferred by the defendant Korea, and the total amount of KRW 51,508,995,000,000,0000,000 won of the deposit amount of this case, and there is no separate provisional seizure and provisional seizure order of this case. The remaining claims of the defendants within the scope of the provisional seizure and seizure order are invalid.

Therefore, among the deposit money of this case, the right to claim the deposit amount of the plaintiffs' amount equivalent to the plaintiffs' respective balance of construction (A165, 08, 00 won, B 33, 484, 300 won, Plaintiff C350, 414, 00 won, Plaintiff D Co., Ltd., 188, 000, and KRW 00) among the deposit money of this case shall be deemed to exist under each of the relevant plaintiffs, and as long as the defendants are dissatisfied with this right, they shall be deemed to have a benefit to seek its confirmation.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is accepted with merit. Since the part against the defendants in the judgment of the court of first instance is unfair with different conclusions, it is revoked by accepting the plaintiff's appeal, and it is decided as per Disposition that the plaintiffs' claim for payment of each claim among the deposit money of this case is against each of the plaintiffs.

The presiding judge shall have jurisdiction over the dismissal of judges.

Judges Kim Tae-tae

Judge Gyeong-man

A person shall be appointed.