Gender Co., Ltd. (Attorney Final White-gu, Counsel for defendant-appellant)

Hyundai Construction Co., Ltd. (Law Firm continental Aju, Attorney Park Ho-won, Counsel for the plaintiff-appellant)

October 27, 2010

Seoul Central District Court Decision 2008Gahap11676 Decided September 8, 2009

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 47,803,580 won with 5% interest per annum from November 25, 2008 to December 29, 2010, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 75% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 203,50,000 won with 20% interest per annum from the day after the delivery date of the copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On August 7, 2007, the Defendant entered into a subcontract for construction works (hereinafter referred to as the “instant subcontract”) with the non-party company on the condition that the construction work is subcontracted to the non-party company the construction cost of KRW 1,480,241,400 (the amount including value-added tax, and the following goods price, construction cost, etc. are included in value-added tax) among the facility improvement works, such as the summer-gu performance rating bar, which the Defendant contracted by the waterworks business headquarters of the Daejeon Metropolitan City (hereinafter referred to as “non-party company”).

B. On May 30, 2008, the Plaintiff: (a) manufactured the FRP tariff to be used in the instant construction project; and (b) supplied the instant goods to the construction site; and (c) paid KRW 203,50,000 to the non-party company within 60 days from the delivery date of the instant goods; (b) concluded a construction materials supply contract with the purport that the ownership of the instant goods will be reserved to the Plaintiff until the non-party company fully pays the price of the said goods; (c) made the instant goods and completed the supply of the instant goods from June 27, 2008 to August 27, 2008.

C. On June 30, 2008, the non-party company was subject to the disposition of discontinuation of its business ex officio by the Commissioner of the National Tax Service.

D. Meanwhile, with respect to the claim for the construction price of this case payable by the non-party company under the subcontract of this case, the head of Seo-gu Daejeon District Tax Office attached the claim amount of KRW 276,819,610 for the non-party company's delinquent tax amount, and each of the following decision was made as stated in the list of creditors in the list of the monetary execution status as follows: each of the creditors recorded in the list of the above creditors stated in the statement of execution status as the claim amount from each court recorded in the decision column on the same date; and each of the decision was served to the defendant around that time.

Statement of Current Status of Cash Execution

본문내 포함된 표 채권자 결정일자 결정법원 청구금액 집행현황 소외 1(선정당사자) 2008. 6. 18. 대전지방법원 (2008타채5619) 49,998,817 채권압류 및 추심명령 소외 2 2008. 9. 9. 대전지방법원 (2008카단7656) 49,082,381 채권가압류 2008. 11.경 대전지방법원 (2008타채11748) 30,887,871 채권압류 및 추심명령 소외 3 2008. 9. 25. 인천지방법원 (2008카단14628) 28,677,436 채권가압류 아시아상사 주식회사 2008. 9. 30. 대전지방법원 (2008카단7920) 14,173,000 채권가압류 소외 4(선정당사자) 2008. 10. 30. 대전지방법원 (2008카단9231) 17,700,000 채권가압류 서대전세무서장 2008. 11. 28. ？ 276,819,610 압류

E. On April 3, 2008, the Defendant agreed to change the construction cost of the instant case from August 10, 2007 to September 25, 2008 (the first change), and agreed to change the construction period from August 10, 2007 to September 25, 2008 (the second change), and agreed to change the construction cost of the instant case from June 18, 2008 to KRW 1,381,60,000 (the second change), and on September 17, 2008, to change the construction period of the instant case from August 10, 207 to November 30, 208 (the third change), and agreed to change the construction period from October 29, 2008 to KRW 1,150,308,000,000, respectively (the second change).

F. The Defendant paid part of the instant construction cost to the non-party company as indicated in the separate sheet of payment of construction cost, and paid KRW 1,136,690,307 in total to the non-party company’s creditors on behalf of the non-party company, by paying each amount of money to the creditors of the non-party company.

G. On October 31, 2008, the non-party company prepared a liquidation note to the defendant that "if the non-party company completes and liquidates the construction work of this case, the non-party company completely liquidates all monetary issues, such as the construction cost and interest for delay, etc., from the defendant, the non-party company will not raise any civil or criminal objection against the defendant regarding the construction work of this case" (hereinafter "the liquidation agreement of this case").

H. On October 15, 2008, the Plaintiff sent to the Defendant a written notice to the effect that the price of the instant goods is expected to be recovered at the construction site of this case on the ground that the Plaintiff was not paid the price of the instant goods by the non-party company, and the ownership of the instant goods still remains due to the non-party company’s ex officio discontinuance of business and the non-party company was registered as a non-performance company due to tax in arrears, and that the non-party company could not pay the price of the instant goods normally. On October 21, 2008, the Plaintiff sent a written notice to the non-party company to request the payment of the instant goods by October 31, 2008 on the ground that the price of the instant goods has not yet been paid 5 days after the Plaintiff supplied the instant goods.

I. After that, the Plaintiff requested the Defendant to pay the price of the instant goods directly, but the Defendant rejected the Plaintiff’s above request on the ground that the Defendant had already paid the price of the instant goods to the Nonparty Company in full.

[Ground of Recognition] A without dispute, Gap evidence 2 through 4, Eul evidence 6, 8, Eul evidence 1-1 through 5, Eul evidence 2, 3, Eul evidence 4-1 through 6, Eul evidence 6-1 through 9, Eul evidence 7, Eul evidence 8-1 through 3, Eul evidence 9-1 through 5, Eul evidence 10-1 through 7, Eul evidence 11, Eul evidence 12-1, 2, testimony of the highest constitution of the witness of the trial court, the purport of whole pleadings

2. The assertion and judgment

A. The plaintiff's selective assertion

(1) The plaintiff was entrusted with the manufacture of the goods of this case by the non-party company through the supply contract of this case. Accordingly, the plaintiff was awarded a sub-subcontract from the non-party company for part of the construction work of this case. Since the Subcontract Act applies to sub-subcontracts, the plaintiff is a subcontractor subject to the Subcontract Act. The non-party company is the principal contractor under the Subcontract Act, the defendant is the owner under the Subcontract Act, the non-party company is the owner. The non-party company is unable to pay the price of the goods of this case due to the non-party's failure to pay taxes due to the non-party's assertion that the plaintiff has ownership of the goods of this case to the non-party company, and the defendant claimed that the non-party company should pay the price of the goods of this case directly to the non-party company of this case. The defendant's amendment of the Subcontract Act to the non-party 1 of this case's contract of this case by unfairly reducing the price of the construction work by entering into a modified contract of this case between the non-party company and the non-party company of this case.

(2) The Plaintiff established the instant goods at the construction site pursuant to the instant supply contract between the non-party company and completed the supply on September 10, 2008 and completed their delivery on September 10, 2008, making it impossible to separate them and restore them. The instant goods were consistent with the part of the leisure facilities executed by the non-party company, and thereafter, around October 31, 2008, the non-party company delivered the said leisure facilities to the Defendant through the completion procedure, thereby gaining profits equivalent to the price of the instant goods. Accordingly, the Plaintiff suffered losses, and the Defendant is obligated to pay compensation under Article 261 of the Civil Act to the Plaintiff.

B. Determination

(1) Determination on the assertion of payment of subcontract consideration

(A) First of all, the former Subcontract Act (amended by Act No. 9085, Mar. 28, 2008) aims to contribute to the sound development of the national economy by establishing a fair order for subcontract transactions so that the prime contractor and the subcontractor can develop mutually complementary and balancedly on equal terms (Article 1); and the term "subcontract transactions" in the above Act means that the prime contractor entrusts the subcontractor with manufacturing (including processing; hereinafter the same shall apply), repair, construction, or services; or that the prime contractor entrusts the subcontractor with the manufacture, repair, construction, or services that the subcontractor has been entrusted by another business entity (hereinafter referred to as "manufacturing, etc."). In full view of the fact that the prime contractor and the subcontractor have been entrusted with the manufacture, repair, construction, or services, the Plaintiff’s entrustment (hereinafter referred to as "objects, etc.") is not subject to the application of the Subcontract Act to the subcontractor, and it is reasonable to limit the subcontractor to the subcontractor, who is the prime contractor or the subcontractor to receive the price (hereinafter referred to as “subcontracts”), and it is also subject to the application of Article 2(1).

(B) Next, Article 14 (1) of the above Act provides that the prime contractor is unable to pay the subcontract price because the principal contractor's suspension of payment, bankruptcy, or permission, authorization, license, registration, etc. for his business is revoked, and the subcontractor requests direct payment of the subcontract price, if the prime contractor finds it difficult for the prime contractor to conduct a business normally under social norms, the ordering person shall make the subcontractor pay the subcontract price directly to the subcontractor and simplified the settlement process and protect the subcontractor's right to subcontract price. Thus, the non-party company's failure to pay all taxes for a long period of time to the Plaintiff on June 30, 2008. Further, the non-party company's obligation to pay the price to the Plaintiff by provisional attachment, etc., on behalf of the non-party company's creditors, the balance of the contract price of this case to the non-party company was merely 24,198 and 240 won, and the Plaintiff is still unable to pay the price to the non-party company's employees on behalf of the Plaintiff.

(C) Finally, Article 14 (4) of the above Act provides that the subcontract price already paid by the ordering person to the principal contractor shall be deducted when the ordering person directly pays the subcontractor the subcontract price. Thus, if the defendant has already paid the non-party company the amount equivalent to the price of the goods of this case out of the contract price of this case, the defendant is not obligated to pay the price of the goods of this case to the plaintiff, and this is examined.

In full view of the purport of the argument as above Nos. 4-1, 3, 5, and 13 of the above No. 4-13, the non-party company and the non-party company stated the above facts as to the manufacturing and installation of the goods of this case 71,379,00 on June 30, 208, 78, 8400 on July 30, 2008, and 223,803,84,580 won were 60,000 won of the above sales price of the goods of this case and 80,000 won of the above sales price of the goods of this case were 80,70,000 won of the above sales price of the goods of this case and 80,000 won of the above sales price of the goods of this case were 60,000 won of the above sales price of the goods of this case, the defendant did not dispute the above facts that the non-party company did not pay the above sales price of this case 2.

(D) Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 47,803,580 won for the remainder of the subcontract price and damages for delay calculated at the rate of 5% per annum under the Civil Act from November 25, 2008, which is the day following the delivery day of the copy of the complaint of this case sought by the plaintiff to the plaintiff, until December 29, 2010, which is the date of the imposition of a reasonable judgment, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

(2) Determination on the assertion of unjust enrichment due to attachment

This part of the argument is also to be judged.

(A) In order for a movable to be recognized as being consistent with a real estate under Article 256 of the Civil Act, the determination shall be made by taking into account whether the movable is attached and combined to the extent that it cannot be separated without causing damage to the movable or excessive expenses, its physical structure, use and function, and whether it can become an object of trade separate ownership with independent economic utility from the existing real estate in terms of its physical structure, use and function. Article 261 of the Civil Act provides that where the acquisition of ownership under the provisions of the Civil Act (Articles 256 through 260 of the Civil Act) is recognized as attachment under Article 261 of the Civil Act, “the person who suffered damage may claim compensation in accordance with the provisions on unjust enrichment.” In order to recognize such claim for compensation, it shall be recognized that the requirements of unjust enrichment have been satisfied not only by the requirements of Article 261 of the Civil Act itself, but also by the judgment on unjust enrichment (see Supreme Court Decision 209Da15602, Sept. 24,

Meanwhile, in the event that the so-called special agreement for the reservation of ownership was made in the course of concluding a contract for the sale of movable property, the agreement between the parties to transfer the ownership of an object is a condition to suspend the payment of the purchase price only when the object was already concluded at the time of delivery of the object. Thus, even if the object was delivered to the buyer, barring any special circumstance, the seller may claim the ownership of the reserved object against the buyer and the third party until the purchase price is paid in full (see Supreme Court Decision 9Da30534 delivered on September 7, 199), barring any special circumstance, barring any special circumstance, a third party may not refuse the owner's request for the return on the ground of payment under the contractual relationship, and if a third party acquires the ownership effectively for the reason of conformity,

However, even if ownership of the object of sale is reserved, if the bona fide acquisition of the object is recognized again by a third party, such bona fide acquisition is a legal ground for holding profits. Therefore, if the purchaser loses the seller's ownership as a result of the purchaser's use of the materials reserved by the ownership to a building owned by a third party under a contract between the third party and the third party, it shall not be deemed that the legal principle on the bona fide acquisition of profits is applied to the claim for compensation based on the corresponding agreement, since the materials are offered to a third party through the performance of the contract, and have the substance similar to the transfer of movable property by transaction. Therefore, if the materials reserved by the seller conforms to the performance of the contract made between the third party and the buyer, it cannot be deemed that there is a legal ground for refusing the claim for compensation, but if the third party did not know that the ownership of the materials reserved by the contract was reserved by the third party without negligence, it shall be deemed that the bona fide third party's possession of profits from such materials cannot be deemed as a legal ground for the claim for compensation.

(B) Comprehensively taking into account the purport of evidence Nos. 2, 3, 6, and 19-1 as to the instant case, the Plaintiff concluded the instant supply contract with the non-party company to reserve the ownership of the instant goods until full payment of the price of the goods was made. The Plaintiff established the instant goods at the construction site pursuant to the supply contract and completed the supply of the instant goods around August 27, 2008. The instant goods correspond to the part of the leisure facilities within the construction site. On October 31, 2008, the non-party company acquired the ownership of the instant goods by delivering the instant leisure facilities through the completion procedure to the Defendant, and the Plaintiff did not know that the ownership of the instant goods was reserved by the non-party company to the Plaintiff on October 15, 2008, and the Plaintiff did not have any legal obligation to pay damages to the Plaintiff at the construction site to the non-party, and the Defendant did not have any ownership interest as to the instant goods at the time of receiving the instant goods from the non-party company.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is partially unfair with the conclusion, the plaintiff's appeal is partially accepted, and the part of the judgment of the court of first instance against the above recognition fee is revoked, and the above amount is ordered to be paid to the defendant, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Jins and decorations (Presiding Judge)