Korea Labor Welfare Corporation

Woo L&C Co., Ltd. (Attorney Lee Hong-soo, Counsel for the plaintiff-appellant)

May 25, 2007

Changwon District Court Decision 2004Da45762 Decided December 6, 2006

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

[ claim] The defendant shall pay to the plaintiff 97,427,90 won with 5% interest per annum from October 15, 2003 to the service date of the original copy of the payment order, and 20% interest per annum from the next day to the day of complete payment.

[Purpose of appeal] The text of appeal is the same.

1. Basic facts

(1) In the case of ES Comprehensive Construction (Representative omitted; hereinafter referred to as ES Comprehensive Construction) a company, from which a business owner subscribed to industrial accident insurance and employment insurance under the Industrial Accident Compensation Insurance Act and the Employment Insurance Act, did not pay to the Plaintiff KRW 90,368,460 of the industrial accident insurance premium of June 26, 2003 and statutory due date until June 2003, and KRW 1,383,340 of the employment insurance premium of March 11, 2002, which is the statutory due date.

② On August 11, 2003, the Defendant entered into a contract for construction works with the NAS General Construction Division with the content that construction works will be constructed in KRW 36,238,490, and KRW 386,497,237, and the construction works will be constructed in KRW 386,497,237, respectively, and each of the above construction works was completed.

③ On October 15, 2003, the Plaintiff, upon approval of the Minister of Labor, seized the amount of KRW 97,427,90, which is a part of the construction cost under the contract for extension of the Aglim plant E-dong Construction to the Defendant for the E-dong Construction, (the amount of KRW 90,368,460, and arrears 5,486,850, and the amount of employment insurance premium 1,383,340, and arrears 182,340,000 + disposition fee for arrears 182,340,000) in the same manner as delinquent national taxes are collected, and the attachment notification was issued to the Defendant on October 15, 2003.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 4, the purport of whole pleadings

2. The parties' assertion

A. The plaintiff

The plaintiff asserts that the plaintiff is liable to pay the above seizure amount to the plaintiff, because the contractor under the contract for the extension of the above plant E-dong construction project is ESs comprehensive construction, and the non-party 1 is merely Es comprehensive construction, and even if the actual contractor of the above construction was the non-party 1, not Es comprehensive construction, the contractor is still taking over the contractor's obligation to pay the construction price directly to the non-party 1, and the contractor is still the contractor's obligation to pay the construction price to the non-party 1. It is also the contractor for Es comprehensive construction. The defendant paid 453,736,00 won to Es comprehensive construction after October 15, 2003 upon receipt of the plaintiff's notice of attachment.

B. Defendant

In regard to this, the defendant asserts that the actual party to the above construction contract and the creditor of the construction price against the defendant are non-party 1, not Es comprehensive construction. Since the defendant merely borrowed the name of Es comprehensive construction with the comprehensive construction license at the time, the plaintiff's seizure on the premise that Es comprehensive construction is the creditor of the construction price against the defendant has no effect.

3. Determination

First of all, the fact that the defendant entered into a contract for the extension work of the forest E-dong on August 11, 2003 with the contractor as E-Ss integrated construction cost of KRW 536,238,490, and KRW 386,497,237, Oct. 1, 2003 is as seen above, and the defendant delivered cash, promissory notes, etc. to E-S integrated construction according to the method of payment under the above contract in relation to the payment of the construction cost, and the amount equivalent to KRW 453,736,00 among them was delivered to the non-party 1 among the non-party 2's testimony, after the plaintiff's attachment notification, from Oct. 30, 2003 to Jan. 12, 2004, which was delivered to the non-party 1 as above.

However, in full view of the purport of evidence No. 1-2, evidence No. 1-2, evidence No. 2, evidence No. 3-2, evidence No. 4-1, and evidence No. 4-1 through No. 59, and testimony and arguments of Non-Party No. 2 of the first instance trial, Non-Party No. 1, who operates a "(trade name omitted)" as a prefabricated housing construction specialized in the construction process, obtained a construction permit under the name of the contractor from the Sssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss.

Under the circumstances, it is reasonable to deem that at the time of the conclusion of each of the above contracts and subcontracts, the Defendant and the Essssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssssss

Therefore, the attachment of the claim for the payment of the construction price by the plaintiff and the attachment notification to the defendant against the defendant cannot be recognized as valid as long as it is proved that the construction of the taxes integrated does not have the claim for the construction price against the defendant. Accordingly, the plaintiff's claim for the collection of the payment is without merit without further determination.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.

Judges Cho Sung-won (Presiding Judge)