[1] Where a contractor goes bankrupt pursuant to Article 28 (1) 4 of the former Construction Business Act and Article 27 subparagraph 2 of the General Conditions of the Construction Contract, whether the subcontractor is entitled to directly claim the payment of the subcontract price to the contractor (negative)

[2] Whether the attachment by the creditor of the contractor is prohibited in accordance with Article 55 (1) of the former Construction Business Act to the part of the subcontractor's contract payment claim against the subcontractor, which is equivalent to the amount of wages to be paid to workers employed by the subcontractor for the subcontracted construction work (negative)

[1] Article 28 (1) 4 of the former Construction Business Act (amended by Act No. 5230 of Dec. 30, 1996) provides that where there is a clear reason that a contractor is unable to pay the subcontract price due to the bankruptcy of the contractor, etc., the ordering person (contractor) may pay the subcontract price directly to the subcontractor corresponding to the portion executed by the subcontractor. However, this does not stipulate that the ordering person is entitled to pay the subcontract price directly to the subcontractor, but it does not necessarily stipulate the obligation to pay the subcontract price directly to the subcontractor. Meanwhile, Article 27 subparagraph 2 of the General Conditions for the Construction Contract of the Ministry of Finance and Economy, which is the Accounting Rules of the Ministry of Finance and Economy, provides that a public official in charge of the contract shall pay the subcontractor directly to the subcontractor if the other party to the contract is unable to pay the subcontract price due to bankruptcy, etc. However, this does not stipulate the matters concerning the rights and obligations of the public, but merely has the nature of administrative order within the administrative organization that established guidelines for exercising the authority of the relevant administrative agencies and

[2] According to Article 55 (1) of the former Construction Business Act (amended by Act No. 5230 of Dec. 30, 1996), among the contract amount of a construction work for which a constructor receives a contract, the amount equivalent to wages to be paid to workers of the relevant construction work cannot be seized. Here, the creditor of the contractor cannot seize the portion equivalent to the wages to be paid by the contractor to workers of the relevant construction work out of the contract amount to the ordering person of the contractor. The purpose of securing wages of workers employed by the contractor is to secure wages of the subcontractor employed by the subcontractor for the relevant construction work is not to secure wages of workers employed by the subcontractor for the relevant subcontracted work, since the subcontractor who has received a subcontract from the contractor does not seize the portion equivalent to the contract amount of wages to be paid by the subcontractor to workers employed by the subcontractor for the relevant construction work, and the creditor of the subcontractor does not seize the portion equivalent to the subcontract amount to the amount of wages to be paid by the contractor to workers of the relevant contractor.

[1] Article 28 (1) 4 of the former Construction Business Act (amended by Act No. 5230 of Dec. 30, 1996) (see current Article 35 (1) 4 of the Framework Act on the Construction Industry), Article 27 subparagraph 2 of the General Conditions for Construction Contracts (Financial Economic Center Accounting Rules) / [2] Article 55 (1) of the former Construction Business Act (amended by the Framework Act on the Construction Industry of December 30, 1996) (see current Article 88 (1) of the Framework Act on the Construction Industry) (see current Article 88 (1) of the Framework Act on the Construction Industry)

Postal Construction Co., Ltd. (Attorney Yellow-sung et al., Counsel for the defendant-appellant)

Defendant

Daejeon High Court Decision 96Na7326 delivered on June 24, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the second ground for appeal

In principle, a contract between a contractor and a subcontractor under the Civil Act is separate from a subcontract between a contractor and a subcontractor, and in principle, the subcontractor does not have the rights and obligations under the direct contract between the subcontractor and the subcontractor. Therefore, the subcontractor may not claim payment of the subcontract price to the contractor unless there are special circumstances.

Article 28(1)4 of the former Construction Business Act (wholly amended by the Framework Act on the Construction Industry, Dec. 30, 1996) provides that a contractor may pay a subcontractor the subcontract price directly equivalent to the portion executed by the subcontractor if there is a clear reason that the contractor is unable to pay the subcontract price due to the contractor’s bankruptcy, etc. However, this does not stipulate a duty to directly pay the subcontractor the subcontract price whether the ordering person has the right to pay the subcontract price directly to the subcontractor. Meanwhile, Article 27 subparag. 2 of the General Conditions of the Construction Contract for the Construction Industry, which is the Accounting Rules of the Ministry of Finance and Economy, provides that a public official in charge of a contract shall directly pay the subcontractor the subcontract price if the other party to the contract becomes unable to pay the subcontract price due to bankruptcy, etc. However, this does not stipulate the matters on the rights and obligations of the public, but merely has the nature of an administrative order within the administrative organization that established the guidelines for exercising the authority to the relevant administrative agency and its employees.

According to the records, the court below's decision is just in holding that, pursuant to the above legal principles, the non-party corporation (hereinafter "non-party corporation")'s claim for the remainder of the construction project against the owner of the building project by the non-party corporation ("non-party corporation") who is the contractor under the above construction business law and accounting rules is not extinguished since the non-party corporation's claim for the remainder of the construction project against the non-party corporation is transferred to the plaintiff, the subcontractor, and the non-party corporation's claims are not extinguished, and there is no violation of law such as theory of lawsuit. Thus, the non-party corporation, as the contractor, notified the plaintiff to the Ycheon-gun, the contractor, cannot claim a direct subcontract price against the

On the first ground for appeal

According to Article 55 (1) of the former Construction Business Act, among the contract amount of a construction work for which a constructor receives a contract, an amount equivalent to the amount of wages to be paid to workers of the relevant construction work cannot be seized. Of the contract amount claim of the contractor against the ordering person, the creditor of the contractor cannot seize the part equivalent to the amount of wages to be paid by the contractor to workers of the relevant construction work. It is for securing wages of workers employed by the contractor for the relevant subcontracted work, and it is not for securing wages of workers employed by the subcontractor who has been subcontracted for the relevant subcontracted work from the contractor. Therefore, the creditor of the contractor does not seize the part equivalent to the amount of wages to be paid by the subcontractor to workers employed by the subcontractor for the relevant subcontracted work from among the contract amount claim of the subcontractor against the ordering person, and the creditor of the subcontractor does not seize the part equivalent to the amount of wages to be paid by the subcontractor to workers for the relevant subcontracted work.

Examining the case back to this case, it is clear that the Plaintiff’s assertion that the attachment of the part equivalent to the wages of workers employed by the Plaintiff for the subcontracted construction work is invalid as it violates Article 55(1) of the former Construction Business Act, among the contract price claim against the apartment group of the non-party company, the contractor.

Although the court below's reasoning is somewhat insufficient, the conclusion that rejected the plaintiff's assertion is just and it cannot be said that there is an error of law such as misunderstanding of legal principles.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)