[1] In the case of a direct payment clause of the subcontract price under Article 21-3 of the General Conditions of the Construction Contract, whether the subcontractor is entitled to claim a direct payment of the subcontract price to the subcontractor (affirmative)

[2] Where a joint and several sureties continues to perform the remaining construction due to the bankruptcy of the contractor, whether the subcontractor has to file an application for payment of the construction cost with the joint and several sureties in order for the subcontractor to directly claim the construction cost under Article 21-3 of the General Conditions of the Construction Contract

[3] Where a claim is provisionally seized, whether the debtor can obtain the title of debt by filing a performance suit against the third debtor (affirmative)

[1] Where the contractor becomes unable to pay the subcontract price to the subcontractor due to bankruptcy or bankruptcy, etc., or where a low-cost successful bid is made by the subcontractor, Article 21-3 (1) of the General Conditions of the Construction Contract (Accounting Rules) that stipulates that the subcontractor shall pay the amount equivalent to the part executed by the subcontractor to the subcontractor by deeming that the subcontractor is requested to pay the price to the subcontractor and the defendant shall pay it directly to the subcontractor. It is reasonable to interpret that the subcontractor shall have the right to claim the payment of the subcontract price if the ordering person directly pays the subcontractor the subcontract price.

[2] In light of Article 28(2) and (3) of the General Conditions of the Construction Contract, joint and several sureties are only entitled to file a claim for the payment of the price under Article 21 of the General Conditions of the Construction Contract only for the performance of the guarantee, and there is no authority to decide whether to file a claim for the payment of the price for the portion performed while the contractor is in charge of the construction. Thus, barring special circumstances, such as that the subcontractor entered into a separate agreement with the joint and several sureties and continued to perform the part of the guarantee performance as well as the joint and several sureties’s performance as the subcontractor’s status, the subcontractor may seek the payment of the construction price under the direct and several sureties clause

[3] Even where a claim has been provisionally seized, the debtor may file a lawsuit of performance against the garnishee and obtain the name of the debtor.

[1] Article 28 of the former Construction Business Act (amended by Act No. 5230 of Dec. 30, 1996), Article 14 of the Fair Transactions in Subcontracting Act, Article 4 of the Enforcement Decree of the Fair Transactions in Subcontracting Act, Article 21-3 (1) and/or / [2] Article 28 of the former Construction Business Act (amended by the Framework Act on the Construction Industry of December 30, 1996), Article 14 of the Enforcement Decree of the Fair Transactions in Subcontracting Act, Article 21-3 (1) and / [3] Article 696, Article 709 (3) of the Civil Procedure Act / [3] Article 28 of the former Construction Business Act (amended by the Framework Act on the Construction Industry of December 30, 1996), Article 14 of the Fair Transactions in Subcontracting Act, Article 21-3 (1), Article 28 (2) and (3) of the Enforcement Decree of the Fair Transactions in Subcontracting Act, Article 709 (3) of the Civil Procedure Act

[1]

Supreme Court Decision 97Da34716 delivered on October 28, 1997 (Gong1997Ha, 3644) and Supreme Court Decision 97Da20083 delivered on December 12, 1997 (Gong1998Sang, 260)

[3] Supreme Court Decision 88Meu25038 decided Nov. 24, 1989 (Gong1990, 112)

Taesung Co., Ltd.

Korea

Busan District Court Decision 97Gahap22365 delivered on January 22, 1998

1. Of the lower judgment, the part against the Defendant ordering the Defendant to pay more than KRW 238,454,232 against the Defendant is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

2. The defendant's remaining appeal is dismissed.

3. The costs of lawsuit shall be borne by each of the first and second instances.

The defendant shall pay to the plaintiff 260,49,00 won with an interest of 25 percent per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

The judgment below is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

The following facts are not disputed between the parties, or there is no dispute between the parties, Gap evidence 1-1-5, Gap evidence 2-3, Gap evidence 4, Gap evidence 6-1 through 11, Gap evidence 9-1, Gap evidence 10, Gap evidence 11, Gap evidence 16, Gap evidence 19, Gap evidence 22, Gap evidence 24, Eul evidence 25, Eul evidence 3-1, Eul evidence 3-2, Eul evidence 4, Eul evidence 6-1, and Eul evidence 6-2, and there is no counter-proof otherwise.

A. The non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 32,197,00 won for the construction of the Busan Jin-gu Office (hereinafter referred to as the "Uin-gu Office") entered into a contract for the construction of the new facilities on March 10, 1995 for the construction of the new facilities in Busan-gu Office as a joint contractor, and entered into a contract for the construction of the new facilities at KRW 6,00,000 for the construction of the new facilities at KRW 453,403,00 for the construction cost on February 7, 1996; the contract for the construction of the additional facilities at KRW 322,197,00 for the construction cost on December 26, 1996; and the contract for the construction of the additional facilities at KRW 30,00,000 for the construction cost on December 26, 200; and thereafter, the contract was again concluded.

B. In relation to the joint supply and demand of each of the above facilities works, the chemical construction and ASEAN entered into a joint supply and demand agreement with the owner and the third party by investing in the proportion of 70% of the chemical construction and 30% of the Atotoland construction in accordance with the joint contract management guidelines, which are established by the accounting rules, with the joint supply and demand agreement with the owner and the third party to represent the joint supply and demand organization and with the authority to manage the property of the joint supply and demand, and the members of the joint supply and demand organization shall be jointly and severally liable to the owner and the subcontractor, and if some of the members are unable to perform the contract due to bankruptcy, bankruptcy, bankruptcy, etc., the remaining members

C. However, according to Article 22(1) of the Act on Contracts for Construction (hereinafter referred to as "general conditions"), which is an accounting established rule to conclude each contract with the Public Procurement Service under the Defendant, as part of the terms of the said contract. General conditions have been amended several times, including April 10, 1996, January 1, 197, even after the conclusion of the said contract for the first facilities construction, however, there is no change in the contents of the provision regarding the instant request, and hereinafter referred to as "contractors" has been enforced at the time of the conclusion of the contract for the first facilities construction, 200.04-104-15, which is referred to as "within 10/10 of the revised rules and regulations for the first facilities construction works," and Article 22(1) of the Act on Contracts for Construction Works (which shall be interpreted as 10/100 of the revised rules and regulations for each of the contracting parties shall be interpreted as 10/20 of the revised guidelines and thus, it shall be interpreted as 10/14 of each contract:

D. On March 20, 1996, the Plaintiff entered into a subcontract with a specialized construction company holding a license for facility construction business with a joint subcontractor (hereinafter referred to as a “ordinary unemployment”) and a non-party corporation (a joint supply and demand agreement with the Plaintiff was entered into with the Plaintiff on the same terms and conditions as that of the Plaintiff’s Hoton Construction, which became its representative, and the Plaintiff became its representative) to perform construction works with a construction cost of KRW 1,800,000 of the aforementioned newly constructed construction (a) under Article 7 of the Joint Supply and Demand Agreement between the construction and Atonton to provide that a member of a joint supply and demand company may not subcontract part of the portion without the consent of the other members. Accordingly, the Gohap Construction appears to have been subcontracted to the Plaintiff, etc. under the consent of the Plaintiff, etc.). At that time, the Gohap Construction notified the above fact to the Defendant’s Public Procurement Service pursuant to the proviso of Article 22(1) of the General Conditions.

E. On March 25, 1997, when the construction was commenced and executed from the time when the contract for the construction of each facility described in the above paragraph (a) was entered into, the construction was suspended on March 25, 1997, and the construction was waived on April 29 of the same year in the manner that the construction was withdrawn from the joint supply and demand organization with the Atotowing, and on May 12 of the same year, the Atogtogtogs entered into a modified contract with the Agtogsian Government under the sole name and made preparations for the resumption of the construction. However, on July 15 of the same year, the Agtogtogs and the Non-party corporation, a joint and several surety for the Agtogsian Construction and the Agtogsian Government Co., Ltd. (hereinafter referred to as the “Sandong”) takes charge of the construction.

F. From the time when the Plaintiff entered into a subcontract as described in the above sub-paragraph D, the Plaintiff started the subcontracted construction and continued the subcontracted construction around the time of the Plaintiff’s default on construction. After that, the Busan Busan District at the Plaintiff’s request on July 3, 1997 evaluated the Plaintiff’s work performance as to the Plaintiff’s work performance amount of KRW 260,49,00 among the construction cost for the period of the period of the construction work for the period of the period of the period of the Plaintiff’s work executed. After that, on February 13, 1998, after the judgment of the lower court was rendered, it was determined that the Plaintiff was not paid KRW 238,454,232 among the construction cost for the period of the period of the construction work for the period of the period of the Plaintiff’s work (the Plaintiff and the Defendant agreed on July 25, 199 to pay KRW 238,454,232 among the construction cost for the period of the Plaintiff’s work performance).

G. On the other hand, the above new construction works jointly supplied and supplied by the Tinman Construction and Ainju Construction constitute "construction works entered into a contract with an amount less than 85/100 of the estimated price as stipulated in Article 21-3 (1) 3 of the General Conditions" (the fact that there is no dispute).

2. The plaintiff's assertion and judgment

A. The Plaintiff asserts that, as a specialized construction company, the Plaintiff is obligated to pay directly to the Plaintiff the construction cost equivalent to the portion executed by the Plaintiff, a subcontractor, in accordance with Article 21-3(1) of the General Conditions, as to the construction cost corresponding to the portion executed by the Plaintiff, a subcontractor, inasmuch as the Plaintiff was awarded a subcontract for the construction of machinery and equipment from the said new construction company, and the subcontracted fact was notified to the Defendant.

(4) Where a contractor directly pays to a subcontractor for construction works because it is deemed that the subcontractor is not able to pay the price for the above construction works due to bankruptcy or dishonor, etc., the primary purpose of Article 21-3 (1) of the former Framework Act on the Construction Industry is to provide that the contractor shall pay the subcontractor the price for the above construction works by deeming that the subcontractor is able to pay the price for the construction works directly to the subcontractor, and that the subcontractor is able to pay the price for the above construction works according to the former Act on the Construction Industry and Article 21-3 (1) of the former Act (amended by Act No. 5230 of December 30, 196) or the Framework Act on the Construction Industry that the subcontractor is able to pay the price for the construction works to the subcontractor by stipulating that the contractor is able to pay the price for the above construction works by stipulating that the contractor is able to pay the price for the construction works to the subcontractor and that the contractor is able to receive the price for the construction works by stipulating that the contractor is able to do so.

C. However, the aforementioned new construction works jointly supplied by the Defendant for low-price construction and ASEAN were fully defaulted, and the Plaintiff was awarded a subcontract for the above new construction works as a specialized construction company and notified the Defendant of the subcontracted fact. Thus, the Defendant is obligated to pay the Plaintiff the above amount of KRW 238,454,232 equivalent to the damages payable to the Plaintiff’s representative of the joint sub-contractor in light of the general terms and conditions Article 21-3(1)2 and 3, and the Plaintiff’s claim for damages for delay against the above amount of KRW 238,454,232 equivalent to the damages payable to the Plaintiff’s construction work (the Plaintiff’s claim for damages for delay from the date following the date of the instant complaint for the construction work payment was delivered, but the Plaintiff’s claim for damages for delay from KRW 22,23 and No. 23 shall be deemed to have not been accepted within the limit of KRW 300,400,000,000,000 for the above 20.325.

3. Defendant’s assertion and judgment

A. In light of the above provisions, since the defendant argues that it cannot pay the plaintiff the direct construction cost without the application for the payment of the price for the joint and several sureties who is a joint and several sureties after the default of construction and ASEAN, the joint and several sureties who is a joint and several sureties cannot pay the plaintiff the construction cost. Thus, the joint and several sureties who has performed the guaranteed obligation has the interest in concluding the contract with the contractor (contractor) in the continuous construction work, and the joint and several sureties shall have the right to directly claim the amount equivalent to the guaranteed performance portion out of the contract amount, and the contractor shall lose the right to claim the amount equivalent to the guaranteed performance portion of the joint and several sureties's guarantee. In light of the above provisions, the joint and several sureties is entitled to claim the payment of the price under Article 21 of the General Conditions only for the guaranteed performance portion, and there is no authority to decide whether to pay the price for the portion which the contractor had requested the payment of the price for the construction work separately from the joint and several sureties, and there is no reason to prove that the contractor's direct payment of the payment of the construction wage in question.

B. In addition, the defendant's claim for construction price against the defendant 4 was extinguished by paying or depositing 5,680,40 won to the defendant 5,000 for the above new construction work. Since the defendant's claim for construction price against the defendant 4 was already seized by 90,000,000 won, it cannot be asserted that the plaintiff's claim for payment of construction price corresponding to the above 40,000 won for the above new construction work amount was not accepted by 10,000 won for the above new construction work amount of 40,000 won for the above new construction work amount of 50,000 won for the above new construction work amount of 40,000 won for the above new construction work amount of 50,000 won for the above new construction work amount of 50,000 won for the above new construction work amount of 50,000 won for the above new construction work amount of 10,000 won for the above new construction work amount of 14,06,01,036,0

4. Conclusion

Therefore, the defendant is obligated to pay the above amount to the plaintiff 238,454,232 won. Thus, the plaintiff's claim shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the court below's decision is partially unfair in conclusion, it has partially accepted the defendant's appeal and dismissed the part against the defendant who ordered payment exceeding the above recognition amount. The plaintiff's claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong Young-hoon (Presiding Judge)