In a case where Gap Co., Ltd and Eul Co., Ltd. organized a joint venture in the joint performance method (50:50) and concluded a construction contract with Byung and Eul Co., Ltd., but Eul Co., Ltd. did not perform the construction, Eul Co., Ltd., deposited the part of the contract for the Eul Co., Ltd. and the amount equivalent to the progress payment incurred prior to termination of the contract, and Eul Co., Ltd., sought confirmation that Gap Co., Ltd.’s claim for payment of deposit money was made solely on the ground that the construction corresponding to deposit money was executed, the case holding that Gap Co.

In a case where Gap Co., Ltd and Eul Co., Ltd. organized a joint venture in the joint performance method (50:50) and concluded a construction contract with Byung local government, and Eul Co., Ltd. entered into a construction contract with Byung, but Eul Co., Ltd. did not perform the construction work thereafter, Byung terminated the part of the contract and deposited the amount equivalent to the progress payment incurred prior to termination of the contract, and Eul Co., Ltd sought confirmation that Gap Co., Ltd is Gap Co., Ltd.'s claim for payment of deposit on the ground that the construction work corresponding to deposit money was executed independently, the case holding that in light of all the circumstances, since the joint venture and joint venture were deemed to have entered into an implied agreement by each member of the joint venture to acquire rights directly to Byung local government according to the ratio of investment in the claim for payment of deposit money, Gap Co., Ltd., a member of the joint venture, the joint venture and joint venture shall not be deemed to have agreed to acquire the claim for payment of deposit money equivalent to 50% of the amount of investment in the joint venture.

Articles 105, 272, 664, 703, and 704 of the Civil Act; Article 29 of the Act on Contracts to Which a Local Government Is a Party; Article 88 of the Enforcement Decree of the Act on Contracts to which a Local Government is a Party;

Bo Line Construction Co., Ltd. (Law Firm Jungwon, Attorneys Kang Young-gu, Counsel for defendant-appellant)

Columb Energy Co., Ltd. (Attorneys Choi Ho-ho et al., Counsel for the plaintiff-appellant)

Daegu District Court Decision 2014Gahap4860 Decided June 26, 2015

December 16, 2015

1. The part of the judgment of the court of first instance against the defendant is modified as follows.

A. On November 28, 2012, the Plaintiff and the Defendant confirmed that the Daegu District Court deposited KRW 147,071,50, out of KRW 294,143,00,00 deposited by the Daegu District Court No. 9482 of 2012, the Plaintiff has the right to claim payment of deposit money of KRW 147,071,50.

B. The plaintiff's remaining claims against the defendant are dismissed.

2. 50% of the total litigation costs between the Plaintiff and the Defendant shall be borne by the Plaintiff, and 50% shall be borne by the Defendant.

1. Purport of claim

On November 28, 2012, between the Plaintiff and the Defendant, it is confirmed that the Daegu District Court deposited the amount of KRW 294,143,00 in gold No. 9482 in Daegu District Court on November 28, 2012, the Plaintiff is entitled to claim payment of KRW 294,143,00

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim against the defendant is dismissed (the part against the co-defendants other than the defendant in the judgment of the first instance against the remaining co-defendants, or both of the appeal are finalized)

1. Basic facts

A. On April 15, 2011, the Plaintiff and the Effective Construction Co., Ltd. (hereinafter referred to as “ enzym construction”) concluded a contract for construction works (hereinafter referred to as “instant contract”) with the Daegu Metropolitan City under which the said joint contractor entered into a contract for construction works (hereinafter referred to as “instant contract”) to receive a contract with the joint performance method (50:50, 201; hereinafter referred to as “instant investment ratio”) from the Daegu Metropolitan City to the cost of construction 7.33,833,00 won, and construction works of reinforced concrete and other construction works (hereinafter referred to as “instant construction works”) from the Daegu Metropolitan City (Evidence 1-1).

B. From April 201 to November 201, 201, the said joint supply and demand company awarded a subcontract for soil works 1, 2, and reinforced concrete works and other subcontracted works among the instant construction works to Western Co., Ltd. (hereinafter “Surin”), and around that time, awarded a subcontract for part of the instant construction works to the Marine Filling Construction Co., Ltd. (hereinafter “ Sea-Bed Construction”). However, until December 201, the said joint supply and demand company suspended construction works or cancelled the subcontract, and thereafter, the said joint supply and demand company executed the remainder of the soil works (Article 2 subparag. 1, 2, and 3).

C. On July 18, 2012, Daegu Metropolitan City notified the members of the said joint supply and demand company of “the instant construction is to temporarily suspend the construction in consideration of the processing period following the termination of the contract with Filiator Construction.” On August 16, 2012, Filiator Construction submitted a written waiver of the construction, terminated the part of Filiator Construction in the instant contract on August 17, 2012, and concluded again between the Plaintiff and the joint supply and demand company that is composed of Nilipo Construction Co., Ltd. on November 29, 2012, the 8th amendment contract for the instant construction (the 17,240,96,510 won which was the last amendment on November 29, 2012, and the date of completion was set as November 24, 2012).

D. Around November 2012, the foregoing joint contractor’s claim for the payment for completed portion was defective, and on November 28, 2012, the construction management headquarters of the Daegu Metropolitan City designating the deposited person as the Plaintiff, Filial Construction, and Flualzine or Dalzine, and KRW 294,143,00, which occurred prior to the termination of the contract with Filialz Construction among the 12 progress payment to be paid to the said joint contractor on November 28, 2012, on the ground that “it was not agreed upon between the Plaintiff, Filizine Construction, who is the original contractor, and the Fluzine Construction, who is the subcontractor, cannot be decided, and the amount of the proposed payment for completed portion for completed portion cannot be determined.” The following, on the ground that the foregoing joint contractor’s claim for the payment for completed portion was concurrent with the attachment of claims against Filizine as indicated in the attached Table, and the deposit was made pursuant to the latter part of Article 487 of the Civil Act and Article 248(1)(1) of the Civil Execution Act (hereinafter “Deposit”).

E. The Defendant and the co-defendants of the first instance trial were issued a seizure order, etc. against the obligor, the obligor, and the third obligor, the Daegu Metropolitan City as the obligor, and the third obligor, who were issued a seizure order, etc. as to the right to claim for payment of deposit against the Daegu Metropolitan City as indicated below (Evidence A 3).

5. Claim No. 20, 206.1, 20, 206.1, 20, 20, 20, 201, 20, 201, 20, 206.1, 20, 20, 36.2, 20, 20, 20, 206, 20, 30, 206, 20, 206, 20, 20, 36.3, 20, 206, 20, 20, 206, 36.3, 20, 206, 206, 20, 206, 30, 206, 206, 206, 206, 30, 206, 206, 36, 204, 204, 204, 204, 201, 36, 36, 24,2, 20

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 through 11 (including provisional number; hereinafter the same shall apply) and the purport of whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The instant contract entered into with the Daegu Metropolitan City as a joint venture with the Plaintiff as a joint venture in the form of a joint venture, which was agreed that certain members shall withdraw from the joint venture on the ground of the failure to perform the construction works, and thus, the eligibility as a member shall be forfeited. As such, each member shall acquire the claim for construction cost according to the degree of actual construction works, not the investment ratio, to the subcontractor, but to the subcontractor. Since the Plaintiff independently executes the construction project corresponding to the instant deposit, the claim for payment of the instant deposit shall be against the Plaintiff.

B. Defendant’s assertion

The instant contract only provides for withdrawal, and there is no special agreement on the circumstance that each member of the joint subcontractor acquires the claim for construction cost according to the degree of actual construction works. Thus, the Plaintiff is merely acquiring the claim for construction cost equivalent to the above investment ratio (50%) against Daegu Metropolitan City directly. Even if the Plaintiff executes construction works beyond the above investment ratio, it is merely a matter of settlement within the joint supply and demand organization.

3. Determination

A. Whether the Plaintiff directly acquired a claim for the construction cost to Daegu Metropolitan City

1) Relevant legal principles

Since a joint venture in the method of joint execution basically has the nature of a partnership under the Civil Act, a claim against a subcontractor due to the execution of a construction work by a joint venture shall, in principle, be vested in the members of a joint venture, and thus, barring any special circumstance, one of the members may not claim payment from the subcontractor at his own discretion 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 by the joint venture. However, the joint venture in the method of joint execution and the subcontractor shall not be subject to compulsory execution on the claim against the subcontractor by designating the members as the debtor for the execution of the joint venture. However, the claim against the subcontractor in relation to the construction contract may be attributed to each of the members of the joint venture in accordance with the share ratio, as the joint venture and the subcontractor agree that the joint venture shall acquire the right directly to the subcontractor according to the claim

In addition, it is reasonable to view that a joint supply and demand agreement in which members of a joint supply and demand agreement are directly paid the price for work or the price for work completion by each member of a joint supply and demand organization is an agreement between the members of a joint supply and demand organization to acquire the claim for the work price by classifying them according to the ratio of equity shares in relation to the joint supply and demand organization, barring any special circumstances. Furthermore, it is reasonable to view that if the joint supply and demand organization intends to pay the claim for the work price to each member of a joint supply and demand organization in accordance with Article 11 of the Guidelines for the Management of the Joint Contract amended on January 8, 1996, the joint supply and demand agreement in which the representative of the joint supply and demand organization plans to pay the claim for the work price to each member of the joint supply and demand organization, along with a written application for participation in the joint supply and demand agreement in which the members of the joint supply and demand organization agreed on the division of the contract price claim, and the contract is concluded after receipt without any particular objection (see Supreme Court en banc Decision 200

2) Determination

A) In full view of the purport of the entire pleadings, the following facts are recognized in each statement of evidence Nos. 4 and 9 as follows.

① On April 201, for the instant contract, the Plaintiff entered into a standard agreement on joint supply and demand with the following terms and conditions, and submitted them to the Daegu Metropolitan City (Evidence A9) along with a tender application document (Evidence A).

Article 1 (Purpose of this Agreement) of the Standard Agreement on the Joint Supply and Demand of Table contained in the main text of this Article provides that the members of a joint supply and demand organization shall jointly and severally perform the contract of this case according to a certain percentage of investment. The advance payment, payment, etc. under the provisions of Article 11 of the Guidelines for the Management of Joint Contracts (Transaction Accounts) shall be paid to the following accounts: The National Bank (Account Number 1 omitted): 2. The National Bank (Account Number 1 omitted): Article 9 (Ratio of Members) of the Postal Corporation (Account Number 2 omitted) shall be 50% and 50% of the Fitant Construction. (1) The members of a joint supply and demand organization shall not withdraw from the contract of this case by the date of the completion of the tender and the execution of the contract, except for the cases falling under any of the following subparagraphs:

② From April 201 to November 2012, Daegu Metropolitan City paid progress payment (except for the instant deposit) under the instant contract to the members of the said joint supply and demand organization or the subcontractors who agreed in direct payment of the said joint purchase and demand organization over 12 occasions, and transferred the relevant account by classifying the construction cost according to the said joint supply and demand agreement under Article 9(1) of the joint supply and demand agreement.

B) According to the above facts, it is reasonable to view that the joint contractors of the instant contract and the Daegu Metropolitan City have made an implied agreement to have each of the members of the joint contractors acquire rights to the Daegu Metropolitan City directly in proportion to the share of the construction cost claim. Therefore, barring any special circumstance, the Plaintiff, a member of the said joint contractors, has a claim for the construction cost directly acquired in accordance with the above investment ratio against the Daegu Metropolitan City, which is the contractor.

B. Whether the Plaintiff acquires a claim for construction price according to the actual construction ratio, not the above investment ratio (negative)

1) Relevant legal principles

In a contract for construction work between a joint venture and a subcontractor, where an agreement is reached to have individual members of a joint venture acquire 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 to obtain the right to a contract for construction work under the condition or degree of the actual performance of the construction work by individual members or the agreement to withdraw or remove from the joint venture on the ground of the failure to perform the construction work by some members, etc., the individual members shall acquire the portion equivalent to their respective shares in the contract for construction work in relation to the subcontractor regardless of the actual performance of the construction work, and the final attribution of the construction work due to the actual contribution ratio in the implementation of the contract for construction work is merely a matter of settlement within the joint venture which is irrelevant to the subcontractor. Therefore, even if the agreement was reached between a joint venture and a subcontractor by which only some members acquire rights to the subcontractor directly in accordance with the ratio of shares in the contract for construction work payment, even if some members actually performed the construction work or some members exceeded their shares in the contract for construction work payment, the agreement shall not be reverted to the subcontractor (see Supreme Court Decision 20132.

2) Determination

As seen earlier, the joint supply and demand agreement, which is a part of the contract in this case, provides that if a member of the joint supply and demand organization fails to perform the contract without any bankruptcy, dissolution, default, or any other justifiable reason, any member of the joint supply and demand organization, other members of the joint supply and demand organization, other than the member, may withdraw from the contract with the consent of the project owner (Article 12(1)2), and if a member of the joint supply and demand organization fails to perform the contract in question without any bankruptcy, dissolution, default, or any other justifiable reason, the member of the joint supply and demand organization shall take measures to withdraw from the contract in accordance with Article 76(1)6 of the Enforcement Decree of the Act on Contracts to Which the State is a Party (Article 12(1)3), and if a part of the member withdraws from the contract in this case, the remaining members of the joint supply and demand organization shall jointly perform the contract (Article 12(2)); (2) on July 18, 2012, the member of the joint supply and demand organization shall give notice of the term of the contract in this case.

However, in light of the above facts, Eul's evidence Nos. 1 through 7, and non-party 8's testimony and the whole purport of the pleadings, it is insufficient to recognize that the above facts of recognition, the statements in Gap's evidence Nos. 1 through 11, and the testimony of the above non-party 8 are sufficient to recognize that "the above joint contractor and the members of the above joint contractor through the contract of this case agreed to acquire the claim for construction price according to the ratio of actual construction not to the above investment ratio but to the above construction ratio," and there is no other evidence to support this otherwise, the plaintiff's above assertion is without merit.

① When a member of a joint venture in a government-funded construction contract, such as the instant contract, acquires a claim for the construction cost directly against a contractor, each member shall acquire the right according to the investment ratio. In the event that the construction project is partially completed and the payment for completed portion occurs, the amount of the claim pursuant to the investment ratio and the amount of the claim pursuant to the construction ratio does not necessarily coincide. Therefore, if the contracting party agreed to have a claim arising according to the investment ratio, the claim shall not be deemed to have been incurred according to the construction ratio. There is no evidence to prove that the contract in this case explicitly agreed to acquire a claim for the construction cost according to the “whether or

② Members withdrawal provisions stipulated in Article 12 of the Joint Supply and Demand Agreement, which are included in the contract of this case, are merely applicable to the government-funded construction work. It cannot be deemed that the provision of a special agreement with a contractor to provide that “if a member withdraws during the contract period, not only the progress payment after the withdrawal but also the progress payment before the withdrawal shall be paid according to the actual construction ratio, not only the above investment ratio but also the progress payment before the withdrawal.”

③ The instant deposit amount of KRW 294,143,00 is equivalent to the progress payment for the portion executed before the contractor withdraws from the joint contractor; and it is difficult for Daegu Metropolitan City or a third party, which is the contractor, to treat the Plaintiff who is a member of the partnership, or the actual execution rate for the filial duty construction.

④ The Daegu Metropolitan City, a contractor for the instant contract, paid the entire progress payment for the instant construction from April 201 to November 2012, 201, and paid the progress payment for the instant construction project separately according to the said investment ratio, but did not pay the progress payment according to the actual execution ratio.

C. Sub-decision

Therefore, the Plaintiff has a claim for construction cost of KRW 147,071,50 (294,143,000 x 50%) based on the above investment ratio of KRW 50% among the instant deposit money in Daegu Metropolitan City. As such, the Plaintiff has a right to withdraw KRW 147,071,500 out of the instant deposit money. The Plaintiff is entitled to pay KRW 147,071,50 only with a written consent attached by another depositor and the execution creditor, etc., or with a final and conclusive judgment in favor of the confirmation of the right to claim for payment of deposit in Daegu Metropolitan City, and there is a benefit to seek confirmation as long as the Defendant, etc. contests this.

4. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair in conclusion, it is accepted by the defendant's appeal and it is decided to modify the judgment of the court of first instance as above. It is so decided as per Disposition

Judges Jin Sung-chul (Presiding Judge) Kim Tae-tae