[1] The nature of an agreement that the contractor would pay the contractor the work price to be paid by the subcontractor to the subcontractor directly to the subcontractor after the construction work was suspended due to the contractor's default, and that the contractor would not raise any objection against it (=transfer of claim)

[2] The scope of national taxes to be preserved by the seizure of claims under the National Tax Collection Act (=the pertinent national taxes)

[1] Where the contractor agrees to pay the subcontractor directly for the claim for the construction cost of the part which the subcontractor performed by the subcontractor between the subcontractor, the contractor and the subcontractor after the construction work was suspended due to the contractor's default, and the contractor does not raise any objection thereto, it is reasonable to deem that the contractor transfers the claim for the construction cost of the subcontractor to the subcontractor and the contractor, who is the debtor, has consented to it.

[2] According to Articles 41(1), 41(2), 42, and 43 of the National Tax Collection Act, and Article 44 of the Enforcement Decree of the same Act, the scope of national taxes to be compensated by the seizure of claims under the National Tax Collection Act shall be limited to the national taxes in arrears, which are the cause of the seizure and notified to the obligor

[1] Articles 105 and 449 of the Civil Act / [2] Articles 41, 42, and 43 of the National Tax Collection Act; Article 44 of the Enforcement Decree of the National Tax Collection Act

[2] Supreme Court Decision 92Nu831 delivered on November 10, 1992 (Gong1993Sang, 144)

Plaintiff (Seoul General Law Office, Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 97Na49130 delivered on June 19, 1998

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

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment of the court below, the court below rejected the provisional attachment order of KRW 80,00,000,000,000,000,000,000 for the non-party 80,000 won and the non-party 480,000 won and the non-party 50,000 won and the non-party 48,000 won and the non-party 50,000 won and the non-party 50,000 won and the non-party 50,000 won and the non-party 48,00,000 won and the non-party 50,000 won and the non-party 8,000 won and the non-party 50,000 won and the non-party 1,000 won and the non-party 5,000,000 won and the non-party 1,005,000 won and the remaining amount of the construction price were paid by the non-party 969.

In other words, since the construction work in this case was interrupted due to the non-party company's default and completed the remaining construction work by the defendant, the construction cost to be paid by the defendant to the non-party company is equivalent to the amount calculated by multiplying the agreed contract price by the nature and ratio at the time of interruption, and the remaining amount of the construction cost to the defendant of the non-party company is limited to the amount remaining after the non-party company deducted the construction cost received from the defendant until that time from the construction cost, and there is no evidence to determine the validity and ratio of the construction cost executed by the non-party company, and further, there is no evidence to determine the excess amount.

However, according to the records, immediately after the completion of the construction work of this case, the defendant 1, 2, 300 won for the remaining construction work between the non-party 9 and the non-party 1, 400 won for the 90-month period, and the non-party 2, 900 won for the 9-month period for the 90-month period, and the non-party 2, 900 won for the 9-year period for the 90-year period for the 90-year period for the 90-month period for the 190-year period for the 50-month period for the 90-year period for the 90-year period for the 90-year period for the 50-year period for the 90-year period for the 500-year period for the 90-year period for the 500-year period for the 90-year period for the 900-year period for the 1,000 won.

Nevertheless, the court below rejected the plaintiff's assertion on the ground that there is no evidence to confirm the ratio of the foundation of the non-party company and the construction cost accordingly, which affected the conclusion of the judgment due to the incomplete hearing or the misconception of facts against the rules of evidence. The ground of appeal pointing this out is

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below held that the non-party company may set up a claim against the right of provisional seizure, even if the agreement was not based on the certificate with the fixed date, in case where the claim of provisional seizure was extinguished by the agreement between the parties at the time of delivery of the provisional seizure decision, by the third party's agreement before the provisional seizure decision of this case was served on the defendant.

However, according to the facts found above, the third party agreement stipulates that the defendant shall pay the part of the construction cost executed by the sewage supplier directly to the sewage supplier and that the non-party company did not raise any objection against the claim. Accordingly, it is reasonable to deem that the non-party company transferred the claim for the construction cost to the defendant to the sewage supplier, and that the defendant, the debtor, consented to the transfer of the claim. Since there is no evidence to deem that the contract was completed by the defendant's certificate with the fixed date of the defendant's consent regarding the transfer of the assignment of the claim, the defendant cannot set up against the plaintiff, the provisional attachment

Unlike this, the judgment of the court below is erroneous in the misapprehension of legal principles as to the waiver of claim and the requisites for setting up against the transfer of claim, or in the misunderstanding of facts, which affected the conclusion of judgment.

3. On the third ground for appeal

Article 41(1) of the National Tax Collection Act provides that the head of a tax office shall notify the obligor of the attachment of a claim in accordance with the disposition on default of national taxes; Article 41(2) provides that the head of a tax office shall, upon notification under paragraph (1), subrogate the obligee to the extent of national taxes, additional dues, and expenses for disposition on default; Article 42 of the same Act provides that the attachment of the claim shall enter into force upon delivery of the notification of the attachment to the obligor; Article 43 of the same Act provides that the attachment of the claim shall be limited to national taxes, additional dues, and expenses for disposition on default; Article 44 of the same Act provides that the notification of the attachment of the claim shall be limited to national taxes, additional dues, and expenses for disposition on default; and Article 41(1) of the same Act provides that the taxable year, items, and amount of national taxes to be preserved by the attachment of the claim under the National Tax Collection Act shall be specified in the notification of attachment of the national taxes notified to the obligor (see Supreme Court Decision 92Nu8310, 10, 192).

However, according to the records, on July 14, 1995, the head of the original tax office attached the non-party company's obligation to collect the corporate tax amount of KRW 67,556,240 on May 14, 1995, and the non-party company attached the non-party company's obligation to pay the corporate tax amount of KRW 27,517,190 on August 1995, and KRW 14,482,810 on July 1995, the non-party company collected the obligation to pay the corporate tax amount of KRW 42,00,000,000 from the defendant to collect the delinquent tax amount, and thus, it can be known that the non-party company collected the obligation to pay the corporate tax amount of KRW 4,2,000 on September 30, 1995 and appropriated it for the delinquent tax amount of the non-party company's obligation to pay the national tax amount of KRW 5,000,000.

Nevertheless, the judgment of the court below that the Defendant’s payment of value-added tax, etc. is valid as the repayment of the claim for construction price of this case is erroneous in the misapprehension of legal principles as to the scope of secured national taxes that affect the attachment of claims based on the disposition on default and the validity of the repayment based on the collection. The ground of appeal assigning

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)