In a case where a contract was made between a joint venture and a subcontractor by which individual members of the joint venture directly acquire the claim for the construction cost according to their share ratio, but only some members have actually performed the construction work or some members have performed the construction work beyond their share ratio on the claim for the construction cost, whether the claim for the construction cost to the subcontractor itself belongs to the actual rate of construction

In a contract for construction work between a joint venture and a subcontractor, where an agreement is made that each member of a joint venture acquires rights to a subcontractor directly in accordance with the ratio of shares in the contract for construction work, barring special circumstances, such as the agreement that the actual performance of construction works by individual members shall be made on the condition of the acquisition of the claim for construction work, or that the member shall be removed and removed from the joint venture on the ground of the failure to perform the construction works by some members, etc., the individual members shall acquire the portion of the claim for construction work in relation to the subcontractor regardless of the actual performance of the construction works to a certain extent, and the final attribution of the construction work due to the actual contribution ratio in the implementation of the contract for construction works is only a matter of settlement within the joint venture which is irrelevant to the subcontractor. Accordingly, where an agreement is reached between a joint venture and a subcontractor to acquire rights to the subcontractor directly in accordance with the ratio of shares in the contract for construction works, only some members shall actually perform the construction works or even if some members have performed the construction works in excess of their share in the contract for construction works.

Articles 105, 272, 664, 703, and 704 of the Civil Act; Article 25 of the Act on Contracts to Which the State is a Party; Article 72(1) of the former Enforcement Decree of the Act on Contracts to which the State is a Party (amended by Presidential Decree No. 20720, Feb. 29, 2008)

Sung Forestry Construction Co., Ltd. (Attorney Park Dong-dong, Counsel for defendant-appellant)

Co., Ltd.

Seoul High Court Decision 2011Na99537 decided November 2, 2012

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Since a joint venture is basically of the nature of a partnership under the Civil Act, a joint venture has the nature of a partnership under the Civil Act. Any claim against a subcontractor due to the execution of a construction work by a joint venture shall, in principle, be reverted to the members of a joint venture, and thus, barring any special circumstance, any one of the members may not claim payment from the subcontractor at will according to the share ratio, and a claim against one of the members shall not be subject to compulsory execution on the claim against the subcontractor of the joint venture by designating the members as the execution obligor. However, as the joint venture and the subcontractor agree to acquire the right to the subcontractor directly in accordance with the share ratio, the claim against the subcontractor in relation to the construction contract may be attributed to each of the members of the joint venture and the above agreement may be made explicitly and explicitly.

The joint supply and demand agreement in which the members of a joint supply and demand organization are directly paid the price of work or the price of work completion by each member of a joint supply and demand organization is reasonable, barring any special circumstance, that the agreement between the members of a joint supply and demand organization shall be deemed to have been reached between the members of a joint supply and demand organization to acquire the right to the contract price by dividing them according to the share ratio. Furthermore, the joint supply and demand agreement shall not be deemed to have been reached if the representative of a joint supply and demand organization plans the payment of the contract price claim to each member of a joint supply and demand organization pursuant to Article 11 of the Guidelines for the Management of the Joint Contract amended on January 8, 1996, including the joint supply and demand organization’s application documents for participation in the joint supply and demand agreement in which the joint supply and demand organization wishes to pay the contract price claim to each member of the joint supply and demand organization in accordance with Article 11 of the Act on Contracts to which the State is a Party and the Enforcement Decree thereof, and the joint supply and demand organization shall not be deemed to have been jointly agreed upon.

B. Examining the records in light of the aforementioned legal principles, the court below is just to dismiss the plaintiff's primary claim on the ground that "the plaintiff's primary claim concerning the construction work of this case is "the claim for construction work belongs to each member of the joint contractor of this case in proportion to their respective shares" on the ground that "the plaintiff's primary claim is "the claim for construction work of this case shall belong to all members of the joint contractor of this case in common with the joint contractor of this case by the implied agreement that the members of the joint contractor of this case shall acquire the right to the proposal directly in proportion to their shares" are "the claim for construction work of this case shall belong to all members of the joint contractor of this case in common with the joint contractor of this case". It does not err in the misapprehension of legal principles as to the attribution of the claim for construction

2. Regarding ground of appeal No. 2

A. In the contract for construction work between a joint contractor and a contractor, where the agreement was reached that the individual members of a joint contractor acquire rights to the contractor directly in accordance with the ratio of shares in the contract for construction work, barring special circumstances, such as the agreement that the contract for construction work itself agrees on the condition that the individual members acquire the right to the contractor in accordance with the ratio of shares in the contract for construction work, or the agreement that the qualification as members shall be forfeited due to the failure of some members to perform the construction work, etc., the individual members acquire the portion equivalent to their shares in the contract for construction work in relation to the subcontractor, regardless of the degree of actual who actually performed the construction work, and the final ownership of the construction work price according to the ratio of actual contribution in the execution of the contract for construction work is only the settlement within the joint contractor which is irrelevant to the subcontractor.

Therefore, if an agreement is reached between a joint contractor and a subcontractor that the individual members of a joint contractor acquire rights to the subcontractor in accordance with the ratio of shares in the claim for the construction cost, even if only some members have actually performed the construction work or some members have performed the construction work beyond their share ratio in the claim for the construction cost, the claim for the construction cost to the subcontractor cannot be deemed to belong to him/her according to the actual ratio of

B. Examining the records in light of the above legal principles, the court below is just to dismiss all of the claims of both the plaintiff's conjunctive 1 and 2 on the ground that "the court below did not have any evidence to recognize that the deposit of this case, the price of which is deposited by the new construction company, one of the members of the joint contractors of this case, as the deposit, was the construction cost for the actual completion of the construction work, and that the plaintiff and new construction company, the new construction company, the remainder of the members, and new construction company, the new construction company (hereinafter "new construction company"), as the plaintiff, as the plaintiff alleged in the ground of appeal, is the construction cost due to the actual implementation of the construction work, and there is no evidence to support that it was the construction cost that should be attributed to the plaintiff and new construction company according to the ratio of the plaintiff's new construction and new construction company's share." There is no error in the misapprehension

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ko Young-han (Presiding Justice)