Jeju District Court 2010 Gohap1315 (201.08)

It is reasonable to deem that other creditors may file a lawsuit of demurrer against distribution.

It is reasonable to deem that a person who asserts that the deposit was paid or not repaid despite the existence of the right to be paid or repaid may bring an action of demurrer against the distribution against the other creditors as stated in the distribution schedule.

(State) Demurrer 2011Na728

AArano et al., two others

Lee B-B et al.

Jeju District Court Decision 2010Gahap1315 Decided September 8, 2011

August 29, 2012

November 14, 2012

1. Of the ancillary claims for the judgment of the court of first instance, the part on which the lower court orders correction of the distribution schedule is revoked. With respect to the distribution procedure case of Jeju District Court 2010taly 65, the amount of dividends to Defendant B, 000 won, and the amount of dividends to Defendant B, 000 won, and 000 won for Defendant B, and the amount of dividends to Defendant C, 000 won, and 00 won for Defendant C, and the amount of dividends to Defendant C, 00 won, and 00 won for Defendant F, 00 won, and the amount of dividends to Defendant C, 00 won, and the amount of dividends to Defendant C, 00 won, were corrected to Defendant C, and the amount of dividends to Defendant C, 00 won, and the amount of dividends to Defendant C, 00 won, and the amount of dividends to Defendant C, 000 won, and the amount of dividends to Plaintiff B, each of which is deleted to Plaintiff B, and the amount to Plaintiff 00.

2. Of the judgment of the first instance, the plaintiffs' appeals against the primary claims and the primary claims are dismissed in both the plaintiffs' appeals against the defendant B, the Republic of Korea, the National Health Insurance Corporation, the 0CC, and DD, and the F. The remaining appeals against the primary claims are dismissed.

3. Of the total litigation costs, the part arising between the plaintiffs and the defendant GoE, and SongG is borne by the above defendants, and 3/10 of the part arising between the plaintiffs and the defendant LeeB, the National Health Insurance Corporation, the 0CC, and DD, and the FG, the above defendants and the remainder are borne by the plaintiffs, respectively.

1. Purport of claim

A. The primary purport of the claim

"Pursuant to the distribution schedule prepared on May 14, 2010 by the above court with respect to the dividend procedure case of Jeju District Court 2010ta 65, the dividends amount of the defendant B, the dividends amount of the defendant EE, the dividends amount of 000 won for the defendant CG, the dividends amount of the defendant CG, the dividends amount of 000 won for the defendant CG, the dividends amount of the defendant CG National Pension Service, the dividends amount of 000 won for the defendant CG, the dividends amount of 00 won for the defendant CG, and the dividends amount of 000 won for the defendant FD, and the defendants' dividends amount of 00 won for the defendant FF Construction, the Jeju District Court 2010 Jeju District Court hereinafter referred to as "K Construction"), and the plaintiff and the MNNN Corporation, and the plaintiff and the company that claimed the dividends amount of 200 won for the defendant CG Construction."

Of the distribution schedule prepared by the above court on May 14, 2010 with respect to the distribution procedure case, the Jeju District Court deleteds KRW 000,000 for Defendant B, the amount of dividends for Defendant HE, KRW 000 for Defendant CG, and KRW 000 for Defendant CG, the amount of dividends for Defendant CG, KRW 000 for the National Pension Service, KRW 000, the amount of dividends for Defendant EE, and KRW 000 for Defendant EE, and KRW 000 for the amount of dividends for Defendant HE, and KRW 00 for Defendant AAE, Inc. (hereinafter referred to as “Plaintiff AAE”), and it is not necessary to modify the purport of the claim that only the Plaintiff’s claim is 00,000, and KRW 0 for the Plaintiff HE Construction Co., Ltd. (hereinafter referred to as “Plaintiff H Construction”), and KRW 00,000 for each of the above reasons.

The part against the plaintiffs in the judgment of the first instance shall be revoked. The same judgment as the written claim shall be sought.

1. Facts of recognition;

A. On April 30, 2009, Jeju Special Self-Governing Province (hereinafter referred to as the "Do") contracted for the PP school extension and gymnasium repair work (hereinafter referred to as the "instant construction work") to KK Construction in advance, from May 4, 2009 to September 1, 2009, and from 000 won for construction work (the increased amount was KRW 000, but was reduced to KRW 000,000 at the time of completion) and paid KRW 00 on May 19, 2009 as advance payment.

B. Jeju-do received from the creditors of K Construction the provisional attachment, seizure, etc. (hereinafter referred to as the "provisional attachment, etc.") of the claim for the construction cost of KR in Jeju-do (hereinafter referred to as "the claim for the construction cost of this case") from the creditors of KR Construction as shown in the table below.

C. On August 16, 2009, KK Construction: (a) subcontracted the instant construction project with the Plaintiff AAroat in large 000 won; (b) Plaintiff HH construction in large 000 won; and (c) sealed construction to Plaintiff II in large 000 won; (b) drafted a direct payment agreement with the Plaintiffs on September 15, 2009; and (c) notified Jeju-do of the subcontract agreement, accompanied by the said direct payment agreement.

D. The Plaintiffs completed subcontracted works on or around December 23, 2009, and Jeju-do conducted a completion inspection on the instant construction works on December 24, 2009, and demanded Jeju-do to pay the subcontract price directly in accordance with the direct payment agreement, and Jeju-do did not pay the subcontract price to Jeju-do on February 9, 2010, and Jeju-do was the fact that the deposited person was the Plaintiffs, LL Industry Development Co., Ltd., MM creation Co., Ltd., and NN companies, and the reasons for deposit.

As to the validity between the provisional attachment, etc. of this case and the right to claim direct payment of subcontract consideration, the Jeju District Court (No. 200 won for the remainder of the construction work of this case (i.e., total contract price of KRW 000 - advance payment of KRW 000 - advance payment of KRW 000 - compensation for delay - KRW 000 for the warranty bond - KRW 000 for the warranty bond - deposit of KRW 000 for the warranty bond - deposit fee of KRW 000).

E. On May 14, 2010, Jeju District Court 2010ta7165, a distribution schedule was prepared to distribute each of the money indicated below to the Defendants on the date of distribution.

F. The Plaintiffs attended the aforementioned date of distribution, raised an objection to the entire dividend amount of the Defendants, and lawfully filed the instant lawsuit on May 24, 2010, which was within the filing period.

[Grounds for Recognition] The non-strifed facts, Gap 1, 2, 3, 5, and 6 (including household numbers), Eul 1, 2, and 3, Eul 1, and 2, and Eul 1, 2, and 3, and the results of the fact inquiry to the Office of Education of Jeju Special Self-Governing Province in the first instance, and the purport of the whole pleadings.

2. Determination as to the legitimacy of the primary claim portion among the lawsuits in this case

In order to confirm legal relations ex officio, the part concerning the claim for confirmation of the primary claimant's deposit money in the lawsuit in this case is deemed lawful. In order to confirm legal relations, it is necessary to immediately confirm the legal relations by the judgment for confirmation in order to cause existing danger and apprehensions, and to eliminate risks and apprehensions, and it is the most effective and appropriate means to confirm the legal relations (see Supreme Court Decision 94Da23388, Nov. 8, 1994). In the case of a mixed deposit with an enforcement deposit and a deposit with payment pursuant to the Civil Act, it is conducted for any reason, and if there is a dispute with the creditors and those who are to receive payment or reimbursement pursuant to the distribution schedule, it is reasonable to settle the dispute by establishing one time through a single procedure, which is called a lawsuit of demurrer against distribution, and therefore, those who asserted that they did not receive payment or reimbursement from the deposit money in this case, were entitled to receive dividends from the other creditors, and thus, they cannot be seen as unlawful as the plaintiffs' right to claim distribution against the other creditors, as stated in the distribution schedule (see Supreme Court Decision 20006Da2636.

3. Determination as to the plaintiffs' conjunctive claim against the defendant High EEG

Of the distribution schedule prepared by the above court on May 14, 2010 with respect to the distribution procedure case, the plaintiffs, and Jeju District Court 2010TY65, the above defendants' claims for KK construction are false claims, and the plaintiffs' claims for direct payment of the above defendants' claims for KK construction are more advanced than the above defendants' claims for KK construction, and the above amount of dividends deleted and deleted should be distributed to the plaintiffs under Article 150 (3) of the Civil Procedure Act, and the above defendants are deemed to have led to confession under Article 150 (3) of the Civil Procedure Act.

4. Determination on the plaintiffs' conjunctive claims against Defendant B, the Republic of Korea, the National Health Insurance Corporation, 0CC, and DoD, and FF.

(a) Occurrence of a direct payment obligation for the subcontract price in Jeju-do;

갑 제3호증의 3， 4， 6， 갑 제19， 21호증의 각 기재， 제1심의 제주특별자치도 교육청 에 대한 사실조회결과 및 변론 전체의 취지를 종합하면， 제주도의 공사 주무관은 2009. 8. 초순경 KK건설의 관리이사로부터 이 사건 공사대금채권이 가압류되어 있는 상태에서 하수급인에게 공사대금을 지불할 수 있는 방법을 문의받고 KK건설의 하도급계약체결 사실을 알게 되자， 제주도에 하도급계약을 통보하도록 안내한 사실， 제주도의 주무관은 그 후 KK건설의 직원으로부터 하도급통보와 관련한 서류를 제출받았으나， 필수서류인 하도급대금 지불보증서 또는 하도급대금 직접지급합의서가 누락되어 있어 반려하였고， KK건설이 보증서 발급 요건이 안 된다고 하자 직불합의서가 포함된 하도급통보에 필요한 서류 목록과 서식을 KK건설의 직원에게 제공한 사실， KK 건설은 2009. 9. 15. 제주도에게 원고들과의 직불합의서가 첨부된 하도급계약 통보서를 제출한 사실， 제주도의 주무관은 2009. 12.경 공사대금을 제주도 명의로 공탁함에 있어 원고들이 권리를 행사할 수 있도록 KK건설이 제출한 직불합의서에 제주도 명의로 서명날인한 사실을 인정할 수 있다. 위 인정사실에 의하여 알 수 있는 다음과 같은 사정들， 즉 ① 제주도는 KK건설이 지급보증서를 발급받을 능력이 없다는 말을 듣자 KK건설에 직불합의서 등을 제공하였고 KK건설의 직불합의서가 첨부된 하도급계약 통보를 정상적으로 접수한 점，② 제주도는 하도급계약 통보가 있기 전까지는 하수급인이 누구인지에 대해 잘 몰랐던 점 등에 비추어 보면，제주도는 KK건설의 하도급계약 통보를 정상적으로 접수함으로써 원고들과 KK건설 사이의 직불합의를 사후에 묵시적으로 동의하는 방법으로 2009. 9. 15.경 원고들， KK건설과 하도급대금의 직불합의를 하였다고 보아야 한다. 따라서 발주자언 제주도는 특별한 사정이 없는 한 하수급인인 원고들에게 이 사건 공사대금 위 000원의 범위 내에서 원고들이 구하는 직불합의에 따른 각 하도급대금 및 그 지연손해금을 지급할 의무가 있다. 이에 대하여 피고 대한민국， 국민건강보험공단은， 직불합의가 있었다고 하더라도 QQ건설이 하도급거래 공정화에 관한 법률 제2조 제2항에서 정한 중소기업자 중 직전 사업연도의 연간매출액 또는 상시고용 종업원 수가 제조 등의 위탁을 받은 다른 중소 기업자의 연간매출액 또는 상시고용 종업원 수보다 많은 중소기업자로서 그 다른 중소 기업자에게 제조 등의 위탁을 한 자에 해당하지 아니하여 직불합의 전제요건인 수급인이 될 수 없으므로 원고들은 제주도에 대하여 하도급대금 직불청구를 할 수 없다고 주장하나， 원고들의 제주도에 대한 위 하도금대금 직불청구권은 건설산업기본법 제35조 제2항， 제3항에서 정한 직불청구이므로 위 피고들의 위 주장은 이유 없다.

B. Determination as to the defendants' defenses, etc.

(1) Defendant B, and Korea’s defense

(A) The plaintiffs defense that some enforcement creditors, including the defendant B, and the Republic of Korea, and the defendant B, before and after the direct payment agreement with the plaintiffs, could not oppose the above provisional attachment authority. If a third creditor of the principal contractor before the direct payment of the subcontract price occurs, by seizure or provisional attachment, etc., the principal contractor's claims against the ordering person are preserved for the execution of the claim (see Supreme Court Decision 2001Da64769, Sept. 5, 2003). The claim under the above provisional attachment agreement is not extinguished despite the direct payment reasons for the subcontract price that occurred thereafter (see Supreme Court Decision 2001Da64769, Sept. 5, 2003). The plaintiff mold and the KK Construction, and Jeju-do were made a direct payment agreement on September 15, 2009, and the enforcement creditor B et al., made a disposition or provisional attachment on the total construction price claim in this case before and after the date of the direct payment agreement between the plaintiffs.

(B) On the other hand, the plaintiffs asserted that Defendant BB's claim for payment of subcontract price according to the above direct non-assignment agreement is false claims arising from KK construction again, and before the plaintiffs' direct payment of subcontract price was made, and there is no other evidence to support the above assertion. The above assertion is insufficient to acknowledge the above assertion, and there is no other evidence to support it.

(2) The plaintiffs' second defense

(가) 원고들은， 직불합의 이전의 가압류들은 KK건설의 제주도에 대한 직불합의 당시까지 발생한 이 사건 공사대금채권에 한하여 그 효력이 있는데，직불합의 전까지 QQ건설의 공사 기성고가 없었고， 직불합의 이후의 압류와 가압류는 직불합의로 인하여 이 사건 공사대금채권이 소멸하여 결국 가압류의 대상이 되는 이 사건 공사대금채권이 부존재하므로，위 피고들은 이 사건 가압류 등으로 원고들에게 대항할 수 없다고 재항 변한다. 살피건대， 갑 제6호증의 32 내지 43의 각 기재에 의하면， 집행채권자인 이BB에 의한 가압류의 대상은 KK건설이 공사를 시행， 완료하여 제주도로부터 지급받을 공사 대금채권이고 나머지 집행채권자들의 가압류의 대상 또한 이와 같은 사실을 인정할 수 있는바， 집행채권자들의 가압류의 대상에는 이미 발생한 공사대금채권뿐만 아니라 장래에 발생할 공사대금채권도 포함되는데， 원고들의 주장대로 가압류 후 직불합의가 있는 경우 장래의 공사대금채권이 더 이상 발생하지 않게 된다면 이는 이미 발생한 가압류권자의 권리를 침해하는 것으로서 가압류의 효력에 저촉되고， 더욱이 수급인의 공사 대금채권에 대하여 가압류 또는 압류가 된 경우 수급인이 이를 피하기 위하여 하수급을 함으로써 가압류나 압류를 피하게 되어 가압류나 압류의 효력이 공동화할 가능성이 높아지는 불합리가 발생하므로， 원고들의 위 재항변은 이유 없다.

(B) With respect to the plaintiffs' labor cost claims under the subcontract construction, the plaintiffs are not subject to seizure under Article 8 of the Framework Act on the Construction Industry, and Article 84 of the Enforcement Decree of the same Act, the above labor cost claims are invalid, and therefore, the deposit of the construction cost in Jeju-do is invalid. The prohibition of seizure of the amount corresponding to the wages to be paid to the workers of the construction work out of the contract amount of the construction work of the 88 and Article 84 of the Enforcement Decree of the Framework Act on the Construction Industry is derived from the constitutional social security requirement to guarantee the right to life of the workers, and it is also another provision to guarantee the livelihood of the workers, and the order of seizure for the claims subject to seizure is invalid by 00 or 200, and if the claims subject to the above seizure are invalid by 10 or 200, it is so decided that it is invalid by 200 or 90, respectively. It is so decided that it is invalid by 201 or 90, respectively.

(C) According to the construction standard contract between Jeju-do and Jeju-do, and the total amount of the construction cost after deducting the advance payment from the total amount of the construction cost, the Plaintiffs, and Jeju-do, as the reasons arising between K Construction, deposited less than the actual amount of the construction cost, and further, if there is a direct payment agreement between Jeju-do and K Construction, the subcontract price subject to direct payment agreement may be deemed to have been made exceptional settlement agreement to exclude the advance payment from the details of the construction cost in this case. Thus, the deposit of the advance payment after deducting the advance payment from the construction cost shall be deemed to be unlawful. In light of the overall purport of the pleadings, and according to the local government construction contract conditions, if the contract is terminated or terminated due to reasons attributable to the other party, the contracting party may set off the balance of the advance payment and the remainder of the construction cost, and if there is no payment guarantee under the Framework Act on the Construction Industry and the Fair Transactions in Subcontracting, the remaining amount of the advance payment can be deemed to have been deducted from the advance payment of the construction cost in this case.

(c)the scope of the obligation to pay labor costs;

With respect to Jeju-do, only the part of the plaintiffs' labor cost for which the provisional attachment, etc. of the enforcement creditors in this case is invalid, and in completing subcontracted construction on December 23, 2009, and conducting subcontracted construction, it can be recognized that the plaintiffs AAtetrari, and the plaintiff II Construction, and the plaintiff II Construction, paid the plaintiff's labor cost of each labor cost. Therefore, Jeju-do has the obligation to pay the plaintiffs the above labor cost equivalent to the above labor cost.

(d) Correction of a distribution schedule;

(1) Meanwhile, since the provisional attachment, etc. of this case on the part of the above labor costs is null and void, the commencement of the above distribution procedure based on a mixed deposit is commenced without the combination thereof being resolved.

The plaintiffs' respective labor costs of the above plaintiffs among the 000 won which are the distributable amount after deducting deposit fees from the amount deposited by Jeju-do, are null and void. The provisional attachment of enforcement creditors is null and void, and the deposit of Jeju-do has the characteristics of repayment deposit (the respective labor costs part) to the plaintiffs who are the debtor, and the execution deposit to the defendants who are enforcement creditors, and it is illegal that the distribution foundation pays dividends to the part having the nature of repayment deposit. However, in the case of the so-called mixed deposit with the execution deposit and the deposit of repayment under the Civil Act, if there is a dispute with the creditors as to the amount of payment or payment under the distribution schedule, it is reasonable to resolve the dispute at once through a single procedure, which is a lawsuit of demurrer against distribution, and therefore, in this case, those who asserted that payment or payment was not made within the scope of the plaintiffs' standing to sue, and those who asserted that payment or payment was not made within the scope of the above distribution schedule are not entitled to bring an objection against the defendants' dividends (see Supreme Court Decision 2006Da265606, supra.).

(2) Furthermore, regarding the distribution schedule that is distributed to the plaintiffs and that is to correct the dividend amount of the defendants, the sum of the plaintiffs' labor costs (=00 won +00 won +000 won +000 won) takes precedence over the defendants' claims, which are enforcement creditors. Accordingly, once once it is divided in proportion to the ratio of the dividend amount to the defendants, it is not disputing the plaintiffs' claims for the highest credit, and the dividend amount of the defendant high EE and SongG are added up to the amount to be distributed to the plaintiffs (the following table deleted). And in accordance with the ratio of the amount recognized as the plaintiffs' claims to the sum of the deleted table to the sum of 00 won, the dividend amount in the following table is set up in proportion to the amount to be distributed to the plaintiffs.

5. Conclusion

Therefore, the Jeju District Court Order 2010 other distribution procedures of the plaintiffs to the above portion of the distribution schedule prepared by the above court on May 14, 2010, the distribution amount for the defendant B is KRW 00,000, and the distribution amount for the defendant B is 000,000, and the distribution amount for the defendant B is 000,000, and the distribution amount for the defendant B is 00,000, 000, 000, 000, 000, 000, and 00, 000, 00, 00, 000, 00, 100, 100, 100, 100, 100, 100, 100, 100,000, 10,000, 10,000, 10,000, 10,000.