Gwangju District Court Decision 201Gadan14569 ( October 17, 2012)

The right to claim the withdrawal of the instant deposit is against the Plaintiff.

The Plaintiff paid all the construction costs corresponding to BBCC within the scope of advance payment received from the Maritime Republic of Korea. Therefore, the Plaintiff has a right to claim payment for the said deposit deposited by the Maritime Republic of Korea.

2012Na51208 Confirmation of Claim for Payment of Deposit

유힉회사 AAA토건

Korea

Gwangju District Court Decision 2011Da14569 Decided August 17, 2012

May 22, 2013

June 12, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On May 16, 2011, it is confirmed that the right to claim payment of deposit money deposited by the Gwangju District Court was the plaintiff on May 16, 2011.

2. Purport of appeal

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

1. Facts of recognition;

A. On June 16, 2009, the Plaintiff entered into a construction contract with the construction period from June 19, 2009 to December 18, 2010 as well as 000 won of the construction amount (reduction from the first construction amount to 00 won), and received 000 won as advance payment from the Nam-gun on June 16, 2009.

B. On July 3, 2009, the Plaintiff entered into a subcontract with a co-defendant BB Construction Co-Defendant LLC (hereinafter “B Construction”) in the first instance trial and paid KRW 000 to the BB Construction on the instant construction project with the construction cost of KRW 000 (hereinafter “the instant subcontract construction contract”), and on July 8, 2009, paid KRW 00 to the BB Construction with the construction advance payment.

C. Around June 7, 2010, when BB Construction performed the instant subcontracted project, it was seized from the Hacheon Tax Office for the claim for the construction cost against the Navy under the instant subcontracted project contract, and thereafter, BB construction was de facto suspended. The Plaintiff notified the termination of the instant subcontracted project contract to BB Construction (Reference: Reference) on September 30, 2010 and October 26, 2010, and notified that the instant subcontract contract was terminated for the Navy, which is the ordering person, around November 16, 2010.

D. With respect to the claim for construction cost related to the subcontract construction contract in this case that BB Construction had against South and North Korea, and the defendant Republic of Korea received the claim amount of KRW 000,000 as of June 7, 2010. The decision reached the third debtor on June 10, 2010, and the decision of the court of first instance on the provisional attachment of the claim amount of KRW 000,000 on October 14, 2010, the decision of the court of first instance reached the provisional attachment of the claim amount of KRW 20,000 on October 18, 2010, and the decision of the court of first instance reached the provisional attachment of the claim amount of KRW 10,000 on October 26, 201, and the decision of the court of first instance reached the claim amount of KRW 10,000 on October 20, 201, and the decision of the plaintiff reached the claim amount of KRW 200 on October 26, 201010.

E. On May 16, 201, Nam-gun deposited 000 won in the balance of the construction price in the instant case (i.e., down payment of KRW 000 - insurance premium of KRW 000 - advance payment of KRW 000 - liquidated damages for delay, and the instant deposit money; hereinafter the same shall apply) with the Gwangju District Court’s Netcheon Branch in 201 for the following reasons:

F. The Plaintiff waived the instant construction, and carried out the construction by a direct method, and completed the said construction on March 23, 201, which was delayed for more than three months than the first scheduled date.

G. On May 201, the Plaintiff agreed to BB construction and KRW 000,00, around the period of BB construction.

[Grounds for Recognition] The non-speed facts, Gap evidence 1, 2, 5, 12, and 16 (including natural disasters, hereinafter the same shall apply), the results of fact inquiries into South Korea by the court of first instance, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

원고가 BB건설에 위 선급금 000원 외에 ① 2010. 5. 20. 송금한 000 원，② 2010. 5. 8. 교부한 약속어음 000원，③ 2010. 9. 18. 교부한 약속어음 000원， 2010. 9. 25. 교부한 약속어음 000원，④ 2010. 10. 9. 교부한 약속어음 000원，⑤ 2010. 11. 6. 교부한 약속어음 000원，⑥2010. 11. 30. 교부한 약속어음 000원을， BB건설의 하도급업체(OOO，OOO산업)에 ⑦ 2011. 3. 12. 교부한 약속어음 000원，⑧2011. 3. 19. 지급한 000원，⑨ 2011. 4. 16. 지급한 000원，⑩ 2011. 7. 16. 교부한 약속어음 000원의 합계 000원을 이 사건 하도급공사대금으로 지급하였는바， 해남군으로부터 지급받은 선급금 범위 내에서 BB건설의 기성고에 해당하는 공사대금 000원을 초과하여 지급하였으므로， 이 사건 공탁금에 대한 출급청구권은 원고에게 있다.

B. Defendant

It is unclear whether the construction cost corresponding to BB construction cost is KRW 000. Each of the above promissory notes asserted by the Plaintiff is a limited liability company and is not the same company as the Plaintiff, and thus, it cannot be deemed that the Plaintiff has paid the said promissory notes, and even if the Plaintiff recognizes that some of the endorsers have paid each of the said promissory notes, it is difficult to ascertain whether the endorser of some of the promissory notes has O or OOO, and whether the amount paid to OO and OO industries has been paid as the subcontractor of the BB construction, and therefore, it cannot be deemed that the Plaintiff has paid all the construction cost corresponding to the expiration of BB construction.

3. Determination

Since Gap evidence No. 4, Eul evidence No. 6, 10, 14, and 17 through 19 are integrated into the following circumstances, i.e., the representative director of the Rib Industries, who is the issuer of each of the above promissory notes, is the husband of the plaintiff's former representative director and the father of the plaintiff, and there is no other transactional relationship that can deliver promissory notes to BB construction regardless of the plaintiff. (ii) The representative director of BB construction is o, but O was under the direct control of the plaintiff and BB construction, and O was under the direct control of the plaintiff, and 10, 10, 10, 15, and 17 through 19, and 19, 100, 100, 200, 200, 300,000,000,000,000,000,000,000,000,000.

4. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.