Plaintiff (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

EP et al. (Attorneys Seo-sik et al., Counsel for the plaintiff-appellant)

October 6, 2010

1. The Defendants shall pay to each Plaintiff 255,00 won with 5% interest per annum from September 21, 2010 to November 3, 2010, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the litigation costs, 90% is borne by the Plaintiff, and the remainder 10% is borne by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

The Plaintiff shall pay 199,253,000 won per annum to the day of complete payment, and 20% per annum to the day from the day following the day of service of the written application for modification of the claim and the cause of the claim with respect to each of the above amounts, which is KRW 100,000,000, out of the above amounts, to Defendant E&D Corporation and each of the above amounts.

1. Basic facts

(a) Details of contracts for construction of the site development zone;

1) On July 4, 2008, Defendant Yang & Yang Construction Co., Ltd. (hereinafter “Defendant Yang & Yang Construction”) was awarded a contract for construction of apartment complexes for 12,13 complexes in the housing site development zone in Songpa-gu Seoul, Songpa-gu, Seoul, 856-1, and 16-1 (hereinafter “Defendant Yang & Yang Construction”) from Defendant Yang & Yang Construction Co., Ltd. (hereinafter “Defendant Yang & Yang Construction”). On March 11, 2009, Defendant Yang & Yang Construction Co., Ltd. (hereinafter “Defendant Yang & Yang”) submitted to Defendant Yang & Yang Construction Co., Ltd. a direct consent to 3,207,30,000 (hereinafter “instant subcontracted construction”) of the said apartment complex construction from Defendant Yang & Yang Construction Co., Ltd. (hereinafter “instant subcontracted construction”) to Nonparty Yang & Yang Construction Co., Ltd.’s 13,207,300,000 won (i.e., labor cost, 1,749,11,910 won).

2) On March 27, 2009, the Defendant Corporation agreed to pay directly the subcontract price of this case to the non-party company (Evidence 1) between Defendant Yang Yang Construction, the non-party company, and the Defendant Corporation agreed to pay directly the subcontract price of this case to the non-party company.

3) Accordingly, the Defendant Corporation paid the Nonparty Company the sum of KRW 2.79 billion out of the subcontract price of this case from April 30, 2009 to December 28, 2009 at the request of Defendant Yang & Yang Construction, as follows:

On April 30, 200 108,00,000 on May 28, 2009, 200 on April 28, 2009; 339,400,00 on June 29, 200 on July 30, 2009; 5, 368,000 on August 36, 200 on August 26, 2009; 601,60,000 on September 36, 200 on September 24, 2009; 7,40,000 on October 36, 200, 200 on October 36, 200, or on October 36, 200, 200; 9:

4) In addition, from May 2009 to January 201, 2010, Defendant Yang Ho Construction paid KRW 13,360,000 out of the subcontract price of this case to the non-party company by paying the waste disposal expenses, employment insurance premium, etc. for the construction site of the non-party company.

B. Defendant Yang Ho Construction and the settlement of accounts between the non-party company

1) On January 15, 2010, while the subcontracted project of this case was being carried out, the non-party company agreed to pay the amount of 2,805,760,00 won (the amount of 2,805,700,000 won paid by the Defendant Corporation and the amount of 13,360,000 won paid by the Defendant Corporation) in direct payment to the employees of the non-party company as well as to pay the amount of 185,893,00 won for daily workers’ labor expenses, which the non-party company delayed with respect to the subcontracted project of this case.

2) Accordingly, on February 10, 2010, Defendant Yang & Yang Construction notified Defendant Yang & Yang Construction that the remainder portion of the subcontracted project would be directly managed by Defendant Yang & Yang Construction. In this regard, the construction cost to be incurred in the future would be paid to Defendant Yang & Yang Construction.

3) On February 11, 2010, Defendant Yang Yang Construction paid 185,638,000 won to employees employed by Nonparty Company for labor costs, respectively.

C. The Plaintiff’s claim and the seizure and collection order

1) On December 14, 2009, the non-party company and the non-party 3, 4, 5, and 6, as joint issuers, prepared and delivered to the Plaintiff a notarial deed of promissory note amounting to KRW 1.4882 billion at face value (No. 1075 on this 2009, a notary law firm No. 1075).

2) On January 18, 2010, the Plaintiff received a seizure and collection order regarding the following claims against the Defendants (third debtor) of the non-party company (third debtor) with the claim amounting to KRW 500 million from the above promissory note amount (this court is called the seizure and collection order in this case; hereinafter the same shall apply), and the above seizure and collection order was served on January 21, 2010, respectively on the Defendants, and became final and conclusive around that time.

① KRW 400 million out of the price of the subcontracted project in this case to the Defendant Corporation of the nonparty company

② KRW 100,000,000 out of the subcontract price for the instant subcontracted work against Defendant Yang Chang-soo Corporation

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, 7, Eul evidence 1 to 7, Eul evidence 1 to 3, Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff

The Defendant Company’s obligation to Nonparty Company due to the instant subcontracted project (i.e., KRW 2,91,653,00,000 (i.e., other settlement settlement agreement - KRW 2,792,40,000). The Defendant Yang & Yang Construction’s obligation to pay the construction cost to Nonparty Company is KRW 807,653,00 (i.e., the aforementioned KRW 199,253,000 + the Defendant Yang & Yang Construction’s obligation to pay the construction cost recovered from Nonparty Company on May 28, 2009 and July 30, 2009).

Therefore, Defendant Corporation is obligated to pay KRW 199,253,00 to the Plaintiff, who is the person entitled to collect the above construction cost, and Defendant Yang & Yang Construction is obligated to pay KRW 100,000,000 within the scope of the Plaintiff’s seizure and collection money among the above construction cost

B. The Defendants

As of the date of other settlement, which was before the seizure and collection order was served on the Defendants, the non-party company received construction cost of KRW 2,805,760,00 from the Defendants, and KRW 185,638,00 out of the remaining construction cost of KRW 185,893,00 is equivalent to labor cost for the employees of the non-party company, and the seizure is prohibited. As such, the part regarding KRW 185,638,00 among this seizure is null and void, and the collection order based on such seizure is null and void under the substantive law.

C. The judgment of this Court

1) According to the above facts of recognition, as of January 21, 2010, when the seizure and collection order of the instant case was served on the Defendants, the construction cost to be paid by the Defendants to the Nonparty Company shall be KRW 185,893,00 (amount settled in the installments).

2) Whether prohibition of seizure is prohibited

In Article 88 of the Framework Act on the Construction Industry and Article 84 of the Enforcement Decree of the same Act, the prohibition of seizure on the amount equivalent to wages to be paid to workers of the construction work in question out of the contract amount of the construction work for which the constructor receives a contract, is derived from the demand of social security under the Constitution to guarantee workers' right to life minimum, and as such, it is another provision to guarantee workers' right to preferential payment as well as the Labor Standards Act that recognizes workers' right to preferential payment of wages, etc. so an order of seizure on a claim prohibited from seizure shall be null and void because it violates the compulsory law. In the event the seizure, which is the premise of the collection order, is null and void, the seizure order based on the seizure cannot be deemed null and void under the procedural law, even if it does not become null and void as it takes effect under the substantive law, and therefore, the third debtor may defend against the creditor's claim for the payment of the debt (see Supreme Court Decision 2007Da29591, Sept. 6, 2007).

In light of the above legal principles, the following facts and circumstances revealed in light of the above facts, namely, the subcontract contract of this case between the non-party company and the defendant Yang & Yang Construction (Evidence No. 3) is included in 1,749,11,91,910 won as labor cost and labor cost ratio of 54% (=1,749,11,910 won/3,207,3000 / 100 x 100). The defendants' assertion that labor cost of 2,91,653,000 won of other settlement agreement of accounts is equivalent to 1,615,492,620 won (2,91,653,000 won x 54%). Thus, in light of the above circumstances, the defendants' assertion that labor cost of this case is 1,749,91,653,000 won and 50% of the above amount of labor cost of 1,601,2000 won after the above Defendants's.

3) Whether the liability for the construction cost of Defendant Yang & Yang Construction exists

The plaintiff asserts that, while the non-party company actually manages the bank account (Account Number omitted) in the name of the non-party company, which is the account that received the above subcontract price from the defendant Corporation, the defendant Yang Ho Construction withdraws the sum of KRW 608,400,000,000 on May 28, 2009, and KRW 339,400,000 on July 30, 2009, and thus, the defendant Yang Ho Construction is obliged to pay the above amount of KRW 608,40,000 to the non-party company separate from the defendant Corporation.

The Plaintiff’s assertion that Defendant Yang & Yang Construction withdrawn a total of KRW 608,40,000,000 as alleged by the Plaintiff is insufficient to recognize solely on the basis of the statement on the Plaintiff’s evidence No. 6, as indicated in the Nonparty Company’s bank account in the name of the Nonparty Company, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion on this part as to Defendant Yang & Yang Construction is

4) Sub-determination

Therefore, the Defendants are obligated to pay the Plaintiff the remaining construction cost of KRW 255,00,00 (i.e., the settlement amount of KRW 185,893,00 at the time of the above settlement of accounts, - the amount of claim prohibited from seizure - the amount of claim 185,638,000 at the time of the above settlement of accounts, and to pay damages for delay at each rate of 5% per annum as stipulated in the Civil Act from September 21, 2010 to November 3, 2010, which is the day following the date of the final delivery of the application for modification of the purport of the instant claim and the cause of the instant claim sought by the Plaintiff, from September 21, 2010 to November 3, 200, and from the next day to the date of the above settlement of accounts.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit.

Judges Kang Young-soo (Presiding Judge) (Presiding Judge)