If the cause for direct payment of the subcontract price is seized before the subcontractor occurs, it shall not be transferred to the subcontractor.

Where any obligation of the principal contractor against the ordering person is preserved by seizure, etc. before the cause for direct payment of the subcontract price occurs, the claim shall not be transferred to the subcontractor to the extent of the amount of the executed and preserved claim, except in special circumstances

Deposit of the debtor's debt amount under Article 248 (3) of the Civil Bankruptcy Court

2013. Action to confirm the claim for payment of deposit money

AA

Republic of Korea and 47

October 29, 2015

November 12, 2015

1. 선정자 주식회사 BB인더스트리, CC건설 주식회사와 피고들 사이 및 원고(선정당사자) AA, 선정자 주식회사 DD, 주식회사 EE와 피고 김FF, 김GG, 강HH, 김II, 김JJ, 박KK, 양LL, MM종합철물 주식회사, 이NN, 조OO, PP공영개발 주식회사, QQ씨앤에이 주식회사, 곽R, 김SS, 곽TT, 신UU, 오VV, 이WW, 이XX, 조YY, 정ZZ, 주식회사 AB피엔씨, AC메탈 주식회사, 주식회사 AD산업, 차AE, AF산업 주식회사, 주식회사 AG토건, 김AH, AJ직업소개소 주식회사, 주식회사 석K 사이에서, 경기도교육청이 2013. 8. 14. 수원지방법원 2013년 금제8534호로 공탁한 474,706,040원 중 원고(선정당사자) AA에게 57,025,790원, 선정자 주식회사 DD에게 109,145,780원, 선정자 주식회사 BB인더스트리에게 18,333,320원, 선정자 주식회사 EE에게 56,248,670원, 선정자 CC건설 주식회사에게 3,727,510원의 각 공탁금출급청구권이 있음을 확인한다.

2. Between the Plaintiff (Appointed), Selected Co., Ltd., EE and Defendant JE General Construction Co., Ltd., Ltd., KJ Industries Co., Ltd., HE Commercial, GYH, KimYH, BW chemical Co., Ltd., BH, BTS, HB, JK, KimSK, Kim Jong-K, Inc., Ltd., SH building manpower, distributionJY, YY, Republic of Korea, OrsY, HakM, HamK, and MaWS, the Gyeonggi-do Office of Education deposited by Suwon-do District Court No. 8534, August 14, 2013, 474,706,040 won deposited by Suwon-do Office of Education with Suwon District Court No. 2013,276,790 won, and EEA Co., Ltd., 1,248,670 won, respectively, shall be confirmed.

3. The Selected Construction Co., Ltd., Defendant JE General Construction Co., Ltd., PS Construction, KJ Industries Co., Ltd., HE Commercial, ParkYH, KimYH, BW chemical Co., Ltd., BH, BTS, previous HB, JK, KimSK, Kim JY, Co., Ltd., Ltd., and their respective claims against the aforementioned Defendants and their respective remaining claims against the Plaintiff and the Appointed Co., Ltd. (Appointed Party) are dismissed.

4. 소송비용 중 선정자 주식회사 BB인더스트리, CC건설 주식회사와 피고들 사이에 생긴 부분은 피고들이, 원고(선정당사자) AA, 선정자 주식회사 DD, 주식회사 EE와 피고 김FF, 김GG, 강HH, 김II, 김JJ, 박KK, 양LL, MM종합철물 주식회사, 이NN, 조OO, PP공영개발 주식회사, QQ씨앤에이 주식회사, 곽R, 김SS, 곽TT, 신UU, 오VV, 이WW, 이XX, 조YY, 정ZZ, 주식회사 AB피엔씨, AC메탈 주식회사, 주식회사 AD산업, 차AE, AF산업 주식회사, 주식회사 AG토건, 김AH, AJ직업소개소 주식회사, 주식회사 석K 사이에 생긴 부분은 위 피고들이 각 부담하고, 원고(선정당사자) AA와 피고 JE종합건설주식회사, 주식회사 PS건설, KJ산업 주식회사, 주식회사 HE상사, 박HS, 김YH, BW화학 주식회사, 주식회사 BH, 주식회사 BTS, 전HB, 이JK, 김SK, 주식회사 SH건축인력, 배JY, 대한민국, 오SY, 정KM, 임WS 사이에 생긴 부분은 원고가 1/2을, 나머지는 위 피고들이 부담하며, 선정자 주식회사 DD, 주식회사 EE와 피고 JE종합건설 주식회사, 주식회사 PS건설, KJ산업 주식회사, 주식회사 HE상사, 박HS, 김YH, BW화학 주식회사, 주식회사 BH, 주식회사 BTS, 전HB, 이JK, 김SK, 주식회사 SH건축인력, 배JY, 대한민국, 오SY, 정KM, 임WS 사이에 생긴 부분은 선정자 주식회사 DD, 주식회사 EE가 각 부담하다.

Cheong-gu Office

Of the KRW 474,706,040 deposited by the Gyeonggi-do Office of Education with the Suwon District Court of Education No. 8534 on August 14, 2013, the first subcontract amount (won) to the Plaintiff (designated parties; hereinafter referred to as “Plaintiff”) 57,025,790 won, D 109,145,780 won, 18,3320 won, 56,248,670 won, 56,670 won, 56,670 won, 18,333,320 won, 320 won, 56,248,670 won, 56,670 won, 1CC Construction Co., Ltd. on the date of the contract of the subcontractor (hereinafter

AA on November 15, 2012 902,00,000 Appointed D 312,400,000

On October 31, 2012, 200, 224,280,00, E EE "645,700,000, CC Construction, 31 July 31, 2012, Defendant tin K K 236,50,000, 31 October 31, 2012, and 36,50,000,000, 3,727,510, respectively, are confirmed to have each claim for payment of deposit.

1. Facts of recognition;

A. The plaintiff and the designated parties (hereinafter referred to as "the plaintiff et al.") and the defendant YK Co., Ltd. (hereinafter referred to as "the company name" will be omitted) ordered the Gyeonggi-do Office of Education from the construction of the JE Integrated Construction and ordered some of the new construction works of the commercial and high schools performed by the defendant JE Comprehensive Construction to enter into a subcontract with the following construction costs (hereinafter referred to as "the above new construction works" and "subcontract construction works" as "the subcontracted construction works of this case").

B. On November 2012, the Plaintiff, etc. and Defendant JE General Construction agreed to pay the subcontract price that Defendant JE General Construction should pay directly to the Plaintiff, etc., while performing the instant subcontracted construction work.

C. Since then, the Plaintiff, etc. and Defendant tinK notified the Gyeonggi-do Office of Education, the ordering person, of the above direct payment agreement. After examining the content, the Gyeonggi-do Office of Education sent an official letter, including the following, to the Plaintiff, Selection D, EE,CC Construction, Defendant tinK on December 10, 2012, and to the Selection BB, BB, who was designated on December 14, 2012, respectively.

- 11 -

Subcontractors

Method of subcontract consideration

Guarantee in the type of guarantee, and the amount of guarantee.

AA Submission of a direct payment agreement 902,000,000

Selected D 〃 312,400,000

(BB) The name of the designated person BB, the name of the designated person " 324,280,000

Selection EE " 645,700,000

CC Construction " 1,035,100,000

tinK 〃 236,500,000

The final settlement amount of a subcontractor company shall be paid.

The balance of the total construction cost (cost)

AA 925,749,00 868,723,210 57,025,790

D 526,240,00 417,094,220 109,145,780

BBinstrus 286,440,00 268,106,680 18,33,320

Appointed EE 700,700,000 6444,451,330 56,248,670

Selected 897,319,00 893,591,490 3,727,510

tinK - 2,630,070

D. On or around February 27, 2013, the Plaintiff, etc. and Defendant JE General Construction and the instant subcontract price were finally settled around April 4, 2013 through May 5, 2013, following the completion of the instant subcontract work. The total amount of the final settlement amount and the remainder of the instant subcontract price paid to the present parties are as follows.

E. Meanwhile, the remaining Defendants except for Defendant JE General Construction, as creditors of Defendant JE General Construction, were assigned claims from Defendant JE General Construction, or issued a provisional attachment, seizure, and collection order with respect to the instant construction claims against the Gyeonggi-do Office of Education, as stated in the “the current status of claims against Defendant JE General Construction”.

F. Accordingly, the Gyeonggi-do Office of Education is subject to a direct payment agreement with the plaintiff, etc. concerning the instant project.

On August 14, 2013, the Plaintiff, etc. and some Defendants were deposited as the deposited money in Suwon District Court Decision 474,706,040 won (hereinafter “the instant deposit money”) under the title of the deposit money in order to determine the priority of the payment of the construction cost among the Defendants’ direct payment obligations and the Defendants’ assignment of claims, provisional seizure, seizure and collection order, etc.

[Reasons for Recognition]

○ 피고 김FF, 김GG, 강HH, 김II, 김JJ, 박KK, 양LL, MM종합철물, 이NN, 조OO, PP공영개발, QQ씨앤에이, 곽R, 김SS, 곽TT, 신UU, 오VV, 이WW, 이XX, 조YY, 정ZZ, AB피엔씨, AC메탈, AD산업, 차AE, AF산업, AG토건, 김AH, AJ직업소개소, 석K : 민사소송법 제150조에 의한 자백간주

○ The remaining Defendants: Facts without dispute, entries in Gap evidence 1 to 14 (including each number), and the purport of the whole pleadings

2. 원고 등의 피고 김FF, 김GG, 강HH, 김II, 김JJ, 박KK, 양LL, MM종합철물, 이NN, 조OO, PP공영개발, QQ씨앤에이, 곽R, 김SS, 곽TT, 신UU, 오VV, 이WW, 이XX, 조YY, 정ZZ, AB피엔씨, AC메탈, AD산업, 차AE, AF산업, AG토건, 김AH, AJ직업소개소, 석K에 대한 각 청구

According to the above facts of recognition, etc., the Gyeonggi-do Office of Education established on August 8, 2013 between the plaintiff, etc. and the defendants

14. Of KRW 474,706,040 deposited by Suwon District Court Decision 2013, the Plaintiff 57,025,790 won, KRW 145,780, KRW 183,320, KRW 56,248,670 to the Selection EE, and KRW 3,727,510 shall be confirmed that the Plaintiff has the right to claim the withdrawal of the deposited goods (in the case of repayment deposit, only one of the designated parties shall be deemed to have the right to claim the withdrawal of the deposited goods, and the Defendants shall not have the right to claim the withdrawal of the deposited goods in its relation with the other designated parties (see, e.g., Supreme Court Decision 2007Da35796, Oct. 23, 2008).

[Reasons for Recognition] Judgment by deemed confession (Article 208 (3) 2 of the Civil Procedure Act)

3. Claims by the Plaintiff, etc. against Defendant JE Comprehensive Construction, PS Construction, KJ Industries, HE Business, Park Hamp, GYH, BW chemical, BH, BH, BTS, HB, Lee JK, KimSK, SH construction personnel, shipY, Republic of Korea, Austria, HamM, HamM, and MaWS

A. Relevant legal principles

A person placing an order directly subcontractor between the person placing an order, the prime contractor and the subcontractor

In cases where the parties have agreed to pay the price to the subcontractor, regardless of whether the construction work has been actually executed or completed under the contract or subcontract, if the subcontractor intends to transfer the principal contractor’s claim for the construction work directly to the ordering person, and the principal contractor does not request the construction work price, then it constitutes a case where the principal contractor transfers the principal contractor’s claim for the construction work price to the subcontractor, and the principal contractor does not request the construction work price to the ordering person. However, unless the assignment of such assignment is done by a certificate with the fixed date of the ordering person’s consent, the ordering person may not oppose the execution creditor on the said claim for the construction work price on the ground

On the other hand, the subcontractor shall actually perform the construction work on the basis of the subcontract.

To the extent of the completion of construction work, the ordering person shall pay the construction price directly to the subcontractor and shall not pay the construction price to the subcontractor. If the ordering person intends to notify the subcontractor of the seizure order, whether or not the subcontractor has actually performed or completed the construction work before the arrival of the ordering person, or whether or not the execution creditor of the claim for the construction price can oppose the subcontractor within the scope of the subcontract price corresponding to the execution portion of the subcontractor. In light of the purport of Article 14(2) of the Fair Transactions in Subcontracting Act (hereinafter “subcontract”) and Article 14(1) of the same Act, it is reasonable to interpret the obligation of the ordering person to pay the subcontract price directly to the subcontractor in full to the subcontractor, and it is reasonable to interpret that the subcontractor bears the obligation to pay the subcontract price directly to the subcontractor within the scope of the scope of the payment (see, e.g., Supreme Court Decision 2013Da16161, Sep. 16, 2013).

On the other hand, the ordering person directly receives the subcontract price between the ordering person, the prime contractor and the subcontractor.

Where a subcontractor’s right to request direct payment has occurred pursuant to Article 14(1) and (2) of the former Subcontract Act by an agreement to pay to a subcontractor to a subcontractor, and a principal contractor’s obligation to pay to the principal contractor ceases to exist within the scope of subcontract consideration, a claim for the construction price against the principal contractor falling under the part on which the ordering person is liable to pay the principal contractor shall be transferred to the subcontractor without maintaining the identity of the claim for the construction price (see, e.g., Supreme Court Decision 2009Da19574, Jun

However, compulsory execution or preservation execution conducted prior to the occurrence of a cause for direct payment under the Subcontract Act.

Since there is no provision excluding the effect, where a third-party creditor of a principal contractor has preserved a claim against the ordering person by seizure, provisional seizure, etc. before a cause for direct payment of subcontract consideration under the former Subcontract Act occurred, the claim preserved for the execution does not extinguish, notwithstanding the direct cause for payment of subcontract consideration arising after the seizure, provisional seizure, etc. (see, e.g., Supreme Court Decision 2001Da64769, Sept. 5, 2003), and the amount of the claim preserved by seizure, etc. does not have a direct claim against the subcontractor, and the claim for construction consideration against the ordering person of the principal contractor against the subcontractor shall not be transferred to the subcontractor to the extent of the amount of the secured claim (see, e.g., Supreme Court Decision 2009Da67351, Nov. 13, 2014)

B. Determination

1) Occurrence of direct action

Article 14 (1) 2 of the Subcontract Act shall apply to the Gyeonggi-do Office of Education.

As seen earlier, the Plaintiff, etc. notified the Gyeonggi-do Office of Education, which is the ordering person, of the direct payment agreement entered into between Defendant JE Construction. Accordingly, the Gyeonggi-do Office of Education notified the Plaintiff, etc. of the fact that it was directly paid for the construction cost of each subcontract on or around December 2012. Since then, the Plaintiff, etc. completed the instant subcontract construction work on or around February 27, 2013. Since it was acknowledged that the direct payment agreement was made between the ordering person, the principal contractor, and the subcontractor on or around February 27, 2012, the Plaintiff, etc. acquired the direct right to claim for the construction cost of the instant subcontract against the Gyeonggi-do Office of Education on February 27, 2013. Accordingly, pursuant to Article 14(2) of the Subcontract Act, the obligation of the Gyeonggi-do Office of Education to the Defendant JE comprehensive Construction and the obligation of the payment consideration to the Plaintiff, etc. of Defendant JE Construction was extinguished within its scope.

As to this, Defendant BWmm, BH, BTS, and JK’s above direct payment agreement constitutes a violation of the good faith and good faith principle and thus null and void.

However, this part of the defendants' assertion is rejected, since it is difficult to see that a direct payment agreement is concluded between the ordering person, the principal contractor, and the subcontractor according to the free will, and it is against the social order or violates the good faith principle, and there is no other evidence to deem it invalid.

2) Scope of direct claims

Furthermore, with respect to the scope of the construction price for which the direct claim may be exercised, the Health Board and Gyeonggi-do

A written notification sent by the Office of Education to the effect that a direct payment is guaranteed within the scope of the initial construction cost of the subcontracted project in this case after receiving a direct payment agreement from the Plaintiff, etc., so the Plaintiff, etc. may request the Office of Education of Gyeonggi-do to make a direct payment as to the remaining balance of the construction cost finally settled with Defendant JE General Construction within the limit of the amount guaranteed by the Office of Education of Gyeonggi-do, excluding the total amount of the construction cost already paid. The amount is as stated in the following table.

List of votes

Appointeds

EE 645,700,000 700,700,000 6444,451,330 1,248,670

Appointeds

CC Construction 1,035,100,00 897,319,00 893,591,490 3,727,510

As to this, the plaintiff et al. shall conduct a game from the final settlement of the defendant JE General Construction and the final settlement.

The balance after deducting the amount received from the Do Office of Education (Plaintiffs 57,025,790, d)

109,145,780 won, 18,333,320 won, Appointor EE 56,248,670 won,

The author argues that the direct payment can be claimed against the Appointed Construction 3,727,510 won.

The plaintiff, etc. and defendant JE by the Gyeonggi-do Office of Education on December 2, 2012, as seen earlier.

The amount of the subcontract price agreed upon by the Gyeonggi-do Office of Education to pay directly to the plaintiff et al. is the same as the amount indicated in the column of the "amount guaranteed for direct payment" of the above Table. However, the statement in the evidence No. 1-2 and the evidence No. 6-6 of the above Table is insufficient to deem that the Gyeonggi-do Office of Education made an agreement to pay the plaintiff et al. directly to the plaintiff et al. in excess of the amount agreed to pay the original direct payment prior to the completion of the subcontract work in this case, and there is no other evidence to acknowledge otherwise. Therefore, the plaintiff et al.'s claim for this part on the premise that the plaintiff et al. has a direct claim for the portion exceeding the amount stated in the "construction price"

3) The scope of the Plaintiff’s claim for payment of the instant deposit money

According to the aforementioned relevant legal principles and facts, the Plaintiff among the causes of deposit of the instant deposit.

Since claims, etc. take effect before February 27, 2013 upon receipt of a direct claim against the Gyeonggi-do Office of Education prior to the provisional attachment of Defendant PS Construction, 60,00,000 won for claims preserved by the provisional attachment of Defendant KJ industry, 128,028,757 won for claims preserved by the provisional attachment of Defendant HE industry, 25,421,63 won for claims preserved by the provisional attachment of Defendant HE company, and 12,453,100 won for claims preserved by the provisional attachment of Defendant HE HS, the remainder of claims preserved by the provisional attachment of the above provisional attachment (474,706,000 won -60,000,000 won - 60,000,028,757 won - 25,631,63-12,453,100 won for claims for deposit money after the provisional attachment shall also have been acquired by the Gyeonggi-do Office of Education after the provisional attachment.

(4) As to this, Defendant BTS’s construction works on the subcontractor by the ordering person solely by direct payment agreement.

The claim for direct payment is not extinguished, but the subcontractor becomes extinct, and there is no evidence to verify when the plaintiff et al. requested the payment to the Office of Education of Gyeonggi-do, and further, if there was a direct payment agreement on November 201, 2012, a request for direct payment can only be made. Thus, the plaintiff et al. cannot make a request for the direct payment of the subcontract price incurred after November 2012. However, as seen earlier, the provisional attachment asserted by the above defendant becomes effective as of February 27, 2013, and the provisional attachment as asserted by the above defendant becomes effective after the completion of the construction works directly subject to the direct payment after the direct payment agreement. Accordingly, the subcontractor can directly claim the construction price corresponding to the above portion to the ordering person, and even if there was a provisional attachment that was made after that, it cannot be asserted against the subcontractor who already acquired the right to direct payment. Accordingly, this part of the above defendant's claim is without merit.

5) The fixed date, even if the direct non-assignment agreement was reached, Defendant JY and SH building personnel.

If there is no person, the right to priority, such as provisional seizure, can not be seen as being the first right of creditors.

In light of the aforementioned relevant legal principles and circumstances revealed in recognition, Gyeonggi-do.

In making direct payment agreements on the construction cost of the instant subcontract on or around December 2012 between the Office of Education, the Office of Education, Defendant JE Comprehensive Construction, and the Plaintiff, etc., the intent of the parties shall be deemed to not pay the construction cost to Defendant JE Comprehensive Construction instead of paying the construction cost directly to the Plaintiff, etc. to the extent that the Plaintiff, etc. actually performed or completed the subcontracted construction. Therefore, it is difficult to view that Defendant JE Comprehensive Construction transferred the instant construction payment claim to the Plaintiff, etc. and accepted the said payment.

Therefore, as long as the plaintiff et al. satisfies the requirements of Article 14 (2) of the Subcontract Act, the client

The claim for construction price against the Defendants is legally transferred to the subcontractor as a matter of course without maintaining the identity thereof, and it is not necessary to be made with a certificate with a fixed date required in the procedure for transferring nominative claims. Therefore, this part of the above defendants' assertion

6) Defendant Republic of Korea and KimYH are national tax creditors or wage creditors, and thus, Plaintiff

Although claiming that a claim should be paid in preference to other claims, the preferential right to payment can be paid in preference to other claims if several claims compete with one another, as in the instant case, it cannot be applied to cases where the Plaintiff, etc. already acquired a direct right to claim part of the subcontract price of this case and the claim is extinguished within the scope of the claim. Therefore, the aforementioned Defendants’ assertion on this part is

C. Sub-committee

Therefore, the Gyeonggi-do Office of Education on August 14, 2013 between the Plaintiff, etc. and the Defendants.

Of the KRW 474,706,040 deposited in gold No. 8534 in 2013, there are 33,276,790 won to Plaintiff A, 18,333,320 won to Selection E, 1,248,670 won to the Selection E, and 3,727,510 won to the Selection E, and the Selection D does not have the right to claim the payment of deposit.

4. Conclusion

그렇다면, 선정자 BB인더스트리, CC건설의 피고들에 대한 각 청구와 원고 AA와 선정자 DD, EE의 피고 김FF, 김GG, 강HH, 김II, 김JJ, 박KK, 양LL, MM종합철물, 이NN, 조OO, PP공영개발, QQ씨앤에이, 곽R, 김SS, 곽TT, 신UU, 오VV, 이WW, 이XX, 조YY, 정ZZ, AB피엔씨, AC메탈, AD산업, 차AE, AF산업, AG토건, 김AH, AJ직업소개소, 석K에 대한 각 청구는 모두 이유 있어 인용하고, 원고 AA와 선정자 EE의 피고 JE종합건설, PS건설, KJ산업, HE상사, 박HS, 김YH, BW화학, BH, BTS, 전HB, 이JK, 김SK, SH건축인력, 배JY, 대한민국, 오SY, 정KM, 임WS에 대한 각 청구는 위 인정범위 내에서 이유 있어 인용하고 나머지 청구는 이유 없으므로 이를 기각하며, 선정자 DD의 피고 JE종합건설, PS건설, KJ산업, HE상사, 박HS, 김YH, BW화학, BH, BTS, 전HB, 이JK, 김SK, SH건축인력, 배JY, 대한민국, 오SY, 정KM, 임WS에 대한 각 청구는 모두 이유 없어 이를 기각하기로 하여, 주문과 같이 판결한다.