[1] Whether it is a notification of the assignment of claims by a notary public to the obligor with the certification of the fixed date of the joint law office with the notice of assignment of claims (affirmative)

[2] The method of calculating the amount of wage claim prohibited from seizure pursuant to Article 88 of the former Framework Act on the Construction Industry and Article 84(1) of the Enforcement Decree of the Framework Act on the Construction Industry, among the remaining construction cost pursuant to the settlement agreement, in case where the construction work contract was terminated even if it was terminated and the contract was received as progress payment until settlement is settled

[3] The time when the provisional seizure for a nominative claim takes effect (=the time when the original copy of the decision is served) and its effect

[4] Nature of advance payment received from a construction contract (=construction price)

[5] In a case where Byung Company paid advance payment to Byung Company C after a provisional attachment order was issued on the claim for construction price against Byung Company C upon the request of Byung Company C and the original copy was served on Byung Company C, the case holding that the provisional attachment claim is "construction price claim" and the advance payment is "construction price" which was made in advance, and the Byung Company C paid advance payment to Eul Company C after receiving provisional attachment order, and therefore, it cannot claim the validity of advance payment and its settlement or appropriation

[1] Article 450 of the Civil Act, Article 3 of the Addenda ( February 22, 1958) / [2] Article 88 of the former Framework Act on the Construction Industry (Amended by Act No. 10719, May 24, 201); Article 84 (1) of the Enforcement Decree of the Framework Act on the Construction Industry / [3] Articles 227 (3) and 296 (1) and (3) of the Civil Execution Act / [4] Article 664 of the Civil Act / [5] Articles 227 (3) and 296 (1) and (3) of the Civil Execution Act, Article 664 of the Civil Act

[1] Supreme Court Decision 86Da858 Decided December 9, 1986 (Gong1987, 146), Supreme Court Decision 2001Da80815 Decided April 9, 2002, Supreme Court Decision 2008Da38400 Decided September 11, 2008 / [2] Supreme Court Decision 2011Da73441 Decided March 15, 2012 (Gong2012Sang, 583) / [4] Supreme Court Decision 2013Da21437 Decided January 23, 2014 (Gong2014, 488)

Seoul High Court Decision 200Na14888 delivered on August 1, 200

Jinjin Enterprise Co., Ltd. (Law Firm Grandmark, Attorneys Yoon-chul et al., Counsel for the defendant-appellant)

Daejeon High Court (Cheongju) Decision 2012Na2423 decided December 10, 2013

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 450 of the Civil Act provides that the transferor shall not oppose any third party, other than the obligor, unless the obligor notifies the obligor of the document with a certified fixed date or does not consent to the obligor. However, with respect to the notification or consent by a document with a certified fixed date, “a fixed date” is made in relation to the notification or consent, which serves as the premise for the obligor’s recognition of the assignment of claims (see Supreme Court Decision 2001Da80815, Apr. 9, 2002). Thus, if the obligee has obtained a certification of a joint law office and notified the obligor of the assignment of claims with the certification of a certified fixed date, the obligee shall be deemed to have notified the obligor of the assignment of claims by the certificate with a certified fixed date (see Supreme Court Decision 2008Da38400, Sept. 1

B. On February 22, 2011, before the provisional attachment decision of this case was delivered to the Defendant, the Defendant, who is the debtor of the provisional attachment decision of this case (hereinafter “Selim C&C”), the portion of the provisional attachment cost of KRW 327,00,000,00 among the construction cost against the Defendant, which was before the above decision was delivered to the Defendant, the Defendant, as the third debtor, should be determined by the Defendant’s claim that the portion of the attached material cost of KRW 217,40,00,00 should be deducted from the construction cost of this case, and that of the attached material cost of KRW 337,650,00,00,000, and the attached material cost of KRW 337,650,00,00,00 and notified the Defendant of the same date with the assignment notice with the fixed date. After receiving the provisional attachment decision of this case, the Defendant paid the above amount of KRW 154,34,50,50,00,000.

C. In light of the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine or violating the precedents regarding the requirements for setting up against the transfer of claims.

2. Regarding ground of appeal No. 2

A. The scope of wage claims prohibited from seizure under Article 88 of the former Framework Act on the Construction Industry (amended by Act No. 10719, May 24, 201) and Article 84(1) of the Enforcement Decree of the same Act refers to the amount specified in the contract or subcontract agreement in the balance sheet among the contract amount of construction works. Therefore, where a contract for construction works is terminated even and the settlement of construction price is reached, the amount of wage claims prohibited from seizure shall be calculated by the method of adding up the amount of wage claims arising until the settlement agreement is reached among the wage claims entered in the subcontract amount calculation sheet, and where there is the construction price received as progress payment by the settlement date, the amount of wage claims prohibited from seizure among the remaining construction price shall be calculated by deducting the amount of wage claims calculated on the basis of the subcontract amount calculation sheet from among the construction price paid based on the balance sheet (see Supreme Court Decision 201Da34147, Mar. 25, 2012).

B. The lower court rejected the Plaintiff’s assertion that the wage under Article 84 of the Enforcement Decree of the Framework Act on the Construction Industry was KRW 1,685,286,00,000 among the total contract amount of KRW 4,440,00,000, as indicated in the instant construction contract, and the Korea Land and Housing Corporation, which is the ordering agency, directly paid KRW 627,00,000 for the labor cost to the Defendant and its sewage companies on May 6, 201, upon obtaining a written consent from the subcontractor from the subcontractor, and upon receiving the Defendant’s consent from the subcontractor, the Defendant’s allegation that the wage was paid KRW 1,66,474,388, including the wage under the instant construction contract amount of KRW 1,685,286,00,00,000, on the ground that there was no other evidence that the aforementioned amount was included in the amount prohibited from seizure under Article 88(1) of the Framework Act on the Construction Industry.

C. However, we cannot accept the above determination by the court below for the following reasons.

The issue of whether a contract constitutes a claim subject to prohibition of seizure is a matter to be attested by the defendant. As long as the plaintiff asserts that the amount paid under the name other than the above 627,00,000 won is included in the amount paid, the defendant must prove that the above 627,00,000 won constitutes the total amount paid. In addition, the construction contract of this case was terminated even before the provisional attachment decision of this case was delivered to the defendant. As such, the court below should have determined whether there was an agreement on the settlement of the construction cost between the defendant and Sungsung C&C at the time of termination, and if there was a settlement agreement, the amount of the wage claim as stated in the statement of the subcontract amount calculation among the settled construction price, which was generated until the settlement agreement was reached, and the amount of the wage claim as calculated on the basis of the calculation sheet of the subcontract amount among the construction price paid for late payment was calculated by deducting the amount of the wage claim, in principle, which was calculated on the basis of the subcontract amount calculation sheet.

Nevertheless, the lower court did not exhaust all the necessary deliberations on the above circumstances, and determined that the above amount constitutes wages for the reason that there was no evidence that there was no amount paid under other names than wages among the above 627,00,000 won, and that the construction contract of this case stated the “labor cost under Article 84 of the Enforcement Decree of the Framework Act on the Construction Industry” as KRW 1,685,286,001, and paid KRW 1,066,474,388 within the scope of the labor cost, which is within the scope of the labor cost, the lower court also determined that the Defendant’s claim constituted the claim prohibiting seizure.

In so determining, the lower court erred by misapprehending the legal doctrine on the method of calculating wages and the burden of proof corresponding to the claim prohibited from seizure when early termination and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment

3. As to the third ground for appeal

A. The lower court explained that if the contractor had reasons to return the advance payment during the period of 00 C&C’s rescission or termination after the payment of the advance payment, or breached the terms and conditions of the advance payment, the unpaid amount of the construction payment up to the time of set-off should be naturally appropriated for the advance payment, and that the contractor shall be liable to pay only the remaining amount of the construction payment (see Supreme Court Decision 9Da5519, Dec. 7, 199). The lower court determined that the Defendant had to pay the advance payment of the instant construction work under the instant construction contract to the Defendant on March 31, 201, which was 00 C&C’s 00 and C&C’s 100 and C&C’s 100 and C&C’s 400 and C&C’s remaining amount of the construction payment to the Defendant on April 7, 2011, which was 000 and C&C’s remaining amount of the construction payment.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

The provisional attachment of a nominative claim takes effect upon delivery of the original copy of the judgment on provisional attachment of claim to a third party obligor (Articles 296(1) and 227(3) of the Civil Execution Act), and when such effect takes effect, the third party obligor cannot extinguish his/her obligation, such as repayment to the obligor, and where such act is committed, the third party obligor may not claim its effect against the provisional attachment obligee. Meanwhile, advance payment received from the construction contract is not paid in relation to the specific nature of the construction contract, but paid in relation to the whole construction. However, the nature of advance payment is the construction payment (see Supreme Court Decision 2013Da21437, Jan. 23, 2014).

If the Defendant paid advance payment to Pream C&C before the provisional attachment order of this case was served, even if the settlement of advance payment and crypt payment occurred after the provisional attachment became effective, it may be asserted against the Plaintiff with the settlement or appropriation. However, since the provisional attachment became effective and the Defendant paid advance payment to Pream C&C after the provisional attachment order of this case was issued and the nature of advance payment was the “construction payment claim” and the “construction payment amount,” the Defendant eventually paid advance payment to Pream C&C after receiving the provisional attachment order of this case as to Pream C&C’s construction payment claim against the Defendant. Thus, the Defendant cannot assert the validity of the aforementioned advance payment and its settlement or appropriation.

Furthermore, the instant construction contract was “the standard subcontract form of construction work” and was printed as “within 15 days from the date (1) the ordering person received advance payment or the date of the contract within 15 days from the date (2) after the contract was concluded,” and was submitted to the Defendant on November 12, 2010 with respect to the contract performance guarantee. However, on March 31, 2011, after the provisional attachment order was delivered to the Defendant on the instant provisional attachment order, the instant contract was submitted to the Defendant on November 10, 201, and the said period was already commenced on three occasions, and the instant contract was paid the total amount of KRW 549,865,666 on the advance payment, and Sungsung C&C did not have the effect of the instant provisional attachment agreement on March 31, 201, or on March 31, 2011.

Nevertheless, the lower court determined that the advance payment for the construction work was settled or appropriated after the provisional attachment took effect pursuant to the advance payment agreement agreed before the provisional attachment takes effect, and all was extinguished. Therefore, the lower court erred by misapprehending the legal doctrine on advance payment, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

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 Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)