2015Da201107 Return of Fraudulent Gains

Colonel-gun:

Construction Financial Cooperative

Busan High Court (Chowon) Decision 2014Na20830 decided December 11, 2014

September 23, 2016

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

The grounds of appeal are examined.

1. The purport of Article 14(2) of the former Fair Transactions in Subcontracting Act (amended by Act No. 12709, May 28, 2014; hereinafter referred to as the “former Subcontract Act”) is to: (a) in cases where an agreement is reached between the ordering person, the prime contractor, and the subcontractor to pay the subcontract price directly to the subcontractor in light of the provisions of Article 14(1) of the same Act, the ordering person is not obligated to pay the subcontract price directly to the subcontractor in full; (b) the subcontractor is not obligated to pay the subcontractor the subcontract price corresponding to the portion of the subcontractor’s manufacture, repair, construction, or service performance; and (c) the subcontractor’s obligation to pay the principal contractor in full within the scope thereof is extinguished (see Supreme Court Decision 2011Da6311, Sept. 12, 2013).

Meanwhile, there is no provision excluding the effectiveness of compulsory execution or preservation execution conducted before a cause for direct payment occurred under the former Subcontract Act, and where a third-party creditor of a principal contractor’s payment becomes liable for the execution of claims due to seizure, provisional seizure, etc. against the principal contractor’s order before a cause for direct payment of subcontract consideration under Article 14 of the former Subcontract Act occurs, the claims preserved for the execution despite the direct cause for payment of the subcontract price incurred thereafter (see, e.g., Supreme Court Decision 2001Da64769, Sept. 5, 2003). In addition, the amount of claims preserved by seizure, etc. as above does not have a direct claim against the subcontractor, and the principal contractor’s claim for construction consideration against the principal contractor shall not be transferred to the subcontractor to the extent of the amount of claims preserved for the execution (see, e.g., Supreme Court Decision 2009Da67351, Nov. 13, 20

2. We examine the fact-finding and judgment of the court below.

(1) The facts acknowledged by the court below are as follows.

① In entering into the instant contract, the Plaintiff and the National Comprehensive Construction Company (hereinafter referred to as “Bail case”) entered into an exceptional settlement agreement to exclude the amount equivalent to the cause of the Plaintiff’s direct payment of the subcontract price from the details of the contract price, which is subject to an advance payment, in the event that the Plaintiff is obligated to pay the subcontract price directly to the subcontractor.

② On April 16, 2009, 2009, the Defendant and the Plaintiff entered into an advance payment guarantee agreement with the Plaintiff to guarantee the Plaintiff the obligation to return the instant advance payment that the Plaintiff received from the Plaintiff for the instant construction. On June 23, 2009, the Plaintiff received the advance payment guarantee under the said advance payment guarantee agreement from the national type of case, and paid KRW 829,000,000 as the advance payment for the instant construction among the instant construction works (hereinafter “instant advance payment”).

③ From April 29, 2009 to the Plaintiff, the creditors of the first instance judgment were issued a provisional attachment or collection order and assignment order, which the creditors of the first instance judgment received against the Plaintiff as to the claim for the construction price against the Plaintiff, as stated in the “the particulars of (A) pressure” by the creditors of the first instance judgment.

④ Meanwhile, from September 10, 2009 to April 6, 2010, the subcontractors, who concluded a subcontract agreement with respect to the instant construction project and were the subcontractors, have caused the causes for requesting the Plaintiff to pay the subcontract price directly to the Plaintiff.

⑤ On April 16, 2010, the Plaintiff terminated the instant contract.

④ The Plaintiff filed a lawsuit against the Plaintiff to demand the payment of the construction price directly to the said subcontractor. On July 14, 2011, the Plaintiff rendered a judgment ordering the Plaintiff to pay the Plaintiff a total of KRW 182,367,484 of the subcontract price and the delay damages, which became final and conclusive later. Accordingly, on December 17, 2012, the Plaintiff paid the Plaintiff a total of KRW 182,367,484 of the subcontract price according to the said judgment to the subcontractor.

(2) Based on the aforementioned factual basis, the lower court determined that, since the grounds for direct payment of the subcontract price occurred prior to the termination of the instant contract, the Plaintiff’s claim for the construction cost against the Plaintiff was extinguished, and regardless of whether the Plaintiff could oppose the obligee by provisional attachment or attachment of the claim for the construction cost against the Plaintiff under the aforementioned exceptional settlement agreement, the Defendant, which is only a guarantor, can assert that the claim for the construction cost against the Plaintiff was extinguished in proportion to the above amount. Thus, the lower court determined that only the remainder of the amount calculated by deducting KRW 182,367,484 of the subcontract price paid by the Plaintiff from the claim for the construction cost against the Plaintiff in the national type of contract, should be deducted from the advance payment settled at the time of termination of the instant contract.

3. However, the lower court’s determination is difficult to accept for the following reasons.

Examining the reasoning and records of the judgment below in light of the aforementioned legal principles, since the Plaintiff entered into an exceptional settlement agreement to exclude the portion corresponding to the case where the Plaintiff is obligated to directly pay the subcontract price to the subcontractor when entering into the contract of this case with the national type of case, and the subcontractor who entered into a direct payment agreement from the details of the contract price, the subcontract price corresponding to the portion executed by the subcontractor who entered into the direct payment agreement shall be excluded from the details of the contract price being appropriated for advance payment, barring any special circumstances. However, as seen earlier, in the instant case where the national type of creditors made a provisional attachment or seizure of the claim for the construction price against the Plaintiff from April 29, 2009 by the national type of creditors, the payment amount corresponding to the portion executed by the subcontractor was directly subject to payment after the provisional attachment or seizure, and the Plaintiff does not have any obligation to directly pay it to the Plaintiff, and the claim for the payment amount to the Plaintiff from the national type of projects shall not be extinguished to the

In addition, according to the above legal principles, the country-specific subcontractor's direct claim does not occur within the scope of the secured claim amount, and the country-specific subcontractor's claim for construction price is not transferred to the above subcontractor. Such legal effect is recognized in consideration of the fact that it is desirable to treat the issue of adjustment of interests of creditors regarding the country-specific property in a simple manner rather than treating it relatively in accordance with the status of the parties to the legal relationship (see Supreme Court Decision 2009Da67351, supra). Therefore, it cannot be deemed that there is relatively a relative cause between the parties to the provisional attachment

Therefore, the construction cost of the parts executed by the Korean-type subcontractors should be appropriated as the advance payment of this case, as the construction cost that the Plaintiff had failed to pay for the case at the time when the contract of this case is terminated, and the same applies to the relationship with the Defendant, the guarantor of the Korean-type subcontractor. Therefore, the amount of the claim for the pre-paid construction cost against the Plaintiff, including the subcontract price directly paid by the Plaintiff, should be calculated, and it should be deducted from the advance payment already settled at the time of termination

Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that all of the KRW 182,367,484 directly paid by the Plaintiff should be excluded from the amount of the claim for the advance payment, which is the subcontract price corresponding to the portion executed by the subcontractors prior to April 16, 2010, for which the grounds to return the advance payment of this case occurred, should be deducted from the amount of the claim for the advance payment of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the occurrence of the claim for the direct payment of the subcontract price and the exceptional settlement agreement

4. On the other hand, since the application for return of a variety of supplies is a kind of lawsuit pending in a lawsuit and its nature as a preliminary counterclaim, as long as the judgment of the court below is reversed on the merits for the above reasons, the dismissal part of the application for return of a variety of supplies by the court below cannot be exempted from reversal as a matter of course without determining the legitimacy thereof (see Supreme Court Decision 96Da5001 delivered on May 10, 1996).

5. 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 Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok