[1] Where the ordering person, the prime contractor, and the subcontractor have agreed on the direct payment of the subcontract price, the subcontractor's right to claim direct payment has occurred, and the principal contractor's obligation to pay the subcontract price is extinguished within the scope of the subcontract price (=at the time of direct payment request) and in such case, whether the principal contractor's obligation to pay the contract price against the ordering person is transferred to the subcontractor (affirmative)

[2] In a case where a principal contractor’s claim against the ordering person was executed and preserved by seizure or provisional seizure before a cause for direct payment of subcontract consideration occurred, whether a claim preserved by the principal contractor due to the cause for direct payment becomes extinct (negative)

[3] In a case where the principal contractor’s claim for the construction price against the ordering person was executed and preserved by seizure or provisional seizure, etc., and the cause for direct payment of the subcontract price occurs, whether the subcontractor’s right to claim direct payment of the amount corresponding to the executed and preserved claim arises (negative), and whether the principal contractor’s claim against the ordering person is transferred to the subcontractor (negative

[4] The case holding that in case where the ordering person, who has paid the subcontract price directly to the subcontractor upon the request of the subcontractor for the direct payment of the subcontract price after the provisional attachment of the principal contractor's claim for the payment of the subcontract price was made by the subcontractor, and thereafter, demanded a return of unjust enrichment against the subcontractor, the ordering person may claim a return of unjust enrichment against the subcontractor on the ground that it caused an error that the principal contractor had the obligation to pay the subcontract price directly to the subcontractor in lieu of the termination of the remaining obligation

[1] Article 14(1) and (2) of the former Fair Transactions in Subcontracting Act (amended by Act No. 8539 of Jul. 19, 2007) / [2] Article 14(1) and (2) of the former Fair Transactions in Subcontracting Act (amended by Act No. 8539 of Jul. 19, 2007), Articles 227 and 276 of the Civil Execution Act / [3] Article 14(1) and (2) of the former Fair Transactions in Subcontracting Act (amended by Act No. 8539 of Jul. 19, 2007), Articles 27 and 276 of the Civil Execution Act / [4] Article 741 of the Civil Act, Article 14(1) and (2) of the former Fair Transactions in Subcontracting Act (amended by Act No. 8539 of Jul. 19, 2007), Article 27(1) and (2)6) of the Civil Execution Act (amended by Act)

[1] Supreme Court Decision 2007Da50717 Decided November 29, 2007 (Gong2007Ha, 2028), Supreme Court Decision 2009Da19574 Decided June 10, 201 / [2] Supreme Court Decision 2001Da64769 Decided September 5, 2003 (Gong2003Ha, 2002)

Ulsan Metropolitan City Jung-gu (Law Firm International Law Firm, Attorney Ha Man-young, Counsel for defendant-appellant)

Rax et al., Counsel for the defendant-appellant

Ulsan District Court Decision 2009Na471 decided July 23, 2009

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

The grounds of appeal are examined.

1. The judgment of the court below

A. The lower court acknowledged the following facts by citing the reasoning of the first instance judgment.

(1) On February 1, 2005, the Plaintiff awarded a contract for the construction work of “Am-free distance or shopping No. 1” (hereinafter “instant construction work”) to the Codefendant Construction Co., Ltd., Ltd., Co., Ltd., Co., Ltd., Ltd. (hereinafter “St Construction”), the first instance court ordered the construction work amount of KRW 1,481,970,000.

(2) On February 28, 2005, Gyeong Construction entered into a subcontract agreement with Defendant Lex, Inc. (hereinafter “Defendant Lex”), setting the steel frame part of the instant construction as a subcontract price of KRW 381,780,000, and entered into a subcontract agreement with Defendant Lex, upon which Defendant Lex would be directly paid the subcontract price from the Plaintiff on March 2, 2005, and notified the Plaintiff of the conclusion of the subcontract agreement.

(3) On May 10, 2005, the Daeup Construction entered into a subcontract agreement with Defendant Labor Industry Development Co., Ltd. (hereinafter “Defendant Labor Industry”) on a set of construction cost of the instant construction at KRW 911,90,900,90 for the temporary, metal, roof, and home-bed work, etc. during the instant construction. At the same time, Defendant Labor Industry entered into a subcontract agreement with the Plaintiff to the effect that it would not raise any objection even if it is paid directly by the Plaintiff, and notified the Plaintiff of the fact of concluding the subcontract.

(4) On April 11, 2005, the Orth elevator limited company (hereinafter “Omat elevator limited company”) obtained a provisional attachment order against the debtor, the plaintiff, the third debtor, and the preserved right, 23,760,000 won, and 23,760,000 won out of the construction price claim in the construction site of this case, and served the provisional attachment order against the plaintiff around that time. On June 12, 2006, Ormat Construction transferred the above provisional attachment order against the plaintiff 25,65,521 won out of the construction price of this case from the plaintiff as the provisional attachment order, and served the above provisional attachment and collection order on the plaintiff around that time.

(5) On July 28, 2005, the non-party 1 received a provisional seizure order against the claim that "15,930,000 won out of the construction price claim in the construction site of this case" and the provisional seizure order against the debtor, the plaintiff, the third debtor, the right to be preserved, and the claim to be provisionally seized was served on the plaintiff at that time. The non-party 1 received the provisional seizure order against the claim that "15,930,000 won out of the construction price claim in the construction site of this case" from the same court No. 2006ta614, Feb. 10, 2006 as the same court No. 2006ta614, which was to be paid from the plaintiff. The above provisional seizure and collection order was served on the plaintiff around that time.

(6) On May 25, 2005, the debtor was appointed as the plaintiff on May 25, 2005, and the third debtor as the plaintiff, and the Ulsan Construction Co., Ltd.'s creditors ① the Ulsan District Court 2005Kahap475, and ② the court 2005Kadan5386, the court 305Kadan5378, and the provisional seizure order was delivered to the plaintiff on May 27, 2005, the provisional seizure order was delivered to the plaintiff on June 7, 2005, and the debtor was delivered to the plaintiff on June 3, 2005, the provisional seizure order was delivered to the plaintiff on May 27, 2005, and the provisional seizure order was delivered to the plaintiff on June 3, 2005, the debtor on June 4, 2005, the provisional seizure order was delivered to the plaintiff on May 27, 2005, and the debtor on May 27, 20017.

(7) On March 3, 2005, the Plaintiff paid 510,000,000,000 won in advance for the Comparison Construction, and around May 18, 2005, the Plaintiff paid 114,367,000 won in advance for progress payment, as well as 80,000 won in Defendant Lex.

On July 13, 2005, the Plaintiff paid 80,000,000 won to Defendant Lex, and 306,247,000 won to Defendant Lex, respectively, on or around July 15, 2005, and around September 5, 2005, the Plaintiff paid 21,780,000 won to Defendant Lex, and KRW 118,220,00,00 to Defendant Lex, respectively, on or around September 8, 2005.

(8) Ors filed a lawsuit seeking payment of the amount to be collected from the Plaintiff in Ulsan District Court No. 2005Da40494, and Nonparty 1 filed a lawsuit with the same court No. 2006Gaso19637, respectively. The Plaintiff filed a lawsuit to seek payment of the amount to be collected from the Plaintiff in each of the above lawsuits. KRW 381,780,000 among the claim for construction payment against the Plaintiff in comparison Construction in each of the above lawsuits, on March 2, 2005, at which there was a direct payment agreement with the Defendant Loxex, and KRW 91,90,000 was terminated on May 10, 2005, each of which was under the direct payment agreement with the Defendant Labor Industry, and around May 10, 2005, at the time of delivery of the provisional attachment order by Nonparty 1, the employer, the prime contractor, and the prime contractor, the principal contractor, and the principal contractor’s direct payment agreement, the Plaintiff’s claim for payment was extinguished within the scope of the appeal.

(9) After December 27, 2007, the Plaintiff paid 25,656,520 won and 8,069,500 won and 33,726,020 won for collection, and 15,930,000 won and interest 5,813,350 won, each of the above appeals was dismissed.

B. The court below rejected the plaintiff's assertion that the plaintiff had a duty to return as unjust enrichment the amount equivalent to the amount of the collection money that the plaintiff paid to the plaintiff to the plaintiff, Ortex, Emno Industries, and Emno Industries, because the plaintiff could not make a direct payment due to provisional attachment exceeding the amount of the construction money to be paid to the Large Cooperation Construction at the time of receiving the request for direct payment from the defendant Ortex, Emno Industries, and Emno Industries, due to mistake in legal principles, and thus, the defendant Ortex, Emno Industries, and Emno Industries were obligated to return as unjust enrichment.

Article 14(1) of the former Fair Transactions in Subcontracting Act (amended by Act No. 8539, Jul. 19, 2007; hereinafter “former Subcontract Act”) provides that “Where any of the following causes occurs and the subcontractor requests a direct payment of the subcontract price equivalent to the portion manufactured, repaired, constructed, or provided services, the ordering person shall directly pay to the subcontractor concerned.” Article 14(2) of the same Act provides that “Where the ordering person directly pays the subcontract price to the subcontractor, and the subcontractor have agreed between the ordering person, the prime contractor, and the subcontractor, who are the subcontractor, the subcontractor, shall not be deemed to have terminated within the scope of the subcontractor’s obligation to pay the subcontract price and the subcontractor’s obligation to pay the subcontract price to the subcontractor to the subcontractor, who is the subcontractor, shall not be deemed to have been paid directly by the ordering person, within the scope of the subcontractor’s obligation to pay the subcontract price under the provisions of this Act, by mistake between the Plaintiff and the subcontractor, and the subcontractor, the subcontractor’s obligation to pay the subcontract price directly to the subcontractor.”

C. In addition, the court below rejected the Plaintiff’s assertion that the Plaintiff’s claim for the construction price against the Plaintiff was provisionally seized by Ors and Nonparty 1 and that the Defendants were obligated to return the amount equivalent to the above collection amount as unjust enrichment since there is no legal ground to the effect of prohibition of disposal of provisional seizure, the Defendants are obligated to return the amount equivalent to the above collection amount as unjust enrichment. In the case of a disposal in violation of the effect of prohibition of disposal of provisional seizure, the disposal act itself is valid in the case of a disposal in violation of the effect of prohibition of disposal of provisional seizure, but it cannot be asserted against other creditors participating in the execution procedure due to provisional seizure, and therefore, it cannot

2. The judgment of this Court

However, such determination by the court below is difficult to accept for the following reasons.

A. According to the language and text of Article 14(1) of the former Subcontract Act, where a direct payment of the subcontract price is agreed upon between the ordering person, the subcontractor’s right to claim direct payment against the ordering person only when the subcontractor executes construction work according to the subcontract and requests the ordering person to pay the subcontract price equivalent to the portion performed by the subcontractor. In addition, it shall be interpreted that the subcontractor’s obligation to pay to the principal contractor is extinguished within the scope of the subcontract price (see Supreme Court Decision 2007Da50717, Nov. 29, 2007). In such a case, the subcontractor’s obligation to pay the contract price against the ordering person is transferred to the subcontractor without maintaining the identity of the principal contractor’s obligation to pay the contract price with the ordering person (see Supreme Court Decision 2009Da19574, Jun. 10, 2010). However, there is no provision excluding compulsory execution or preservation execution made before the cause for direct payment occurred under the former Subcontract Act, and thus, the principal contractor’s obligation to compensate for the subcontractor’s obligation 2060.

As seen above, in relation to the occurrence of a direct claim, the transfer of the principal contractor's obligation to pay the price to the principal contractor, and the extinction of the principal contractor's obligation to pay the price, one of them does not take effect unless any other legal effect takes place. The ordering person, upon a direct claim by the subcontractor, bears the obligation to pay the price to a third party without being bound by his/her own will or his/her own contracting party, and thus, it may be difficult for the ordering person to bear the obligation to pay the price. The principal contractor's obligation to pay the price may lead to a non-performance of the ordering person. The principal contractor's obligation to pay the price to the third party is satisfied with his/her own obligation; the principal contractor's interest to withdraw his/her interest to the principal contractor until it reaches the stage of the preservation of the execution of seizure, provisional seizure, provisional seizure, etc. against the principal contractor's obligation to pay the price to the subcontractor, and in particular, the balance is lost. In full view of the above, it is desirable that various creditors' interest adjustment issues surrounding the principal contractor's property should be treated to the principal contractor's obligation.

B. We examine the reasoning of the lower judgment in light of the aforementioned legal doctrine.

First of all, it is clear that the Defendants paid the subcontract price directly to the Defendants, who are the ordering parties, as determined by the lower court, by exercising the Plaintiff’s right to demand direct payment under Article 14(1)2 of the former Subcontract Act. If so, the Defendants have the right to demand direct payment within the scope of the subcontract price for which they are obligated to pay directly to the Plaintiff under Article 14(1)2 of the former Subcontract Act, and the Plaintiff’s obligation to pay the subcontract price is extinguished at the same time when the Plaintiff directly pays the Defendants, as determined by the lower court, the Plaintiff’s payment of the subcontract price and the payment of the subcontract price to the Defendants of the Large Subdivision Construction, together with the payment of the Plaintiff’s payment of the subcontract price and the payment of the subcontract price to the Defendants of the Large Subdivision Construction, and the obligation is extinguished

Furthermore, as the court below duly admitted, since the amount of the provisional attachment among the claim for the construction price of this case against the plaintiff of the Daeup Construction at the time of July 13, 2005 when the plaintiff received a request for direct payment from the defendant Lox and the defendant Lee Labor Industry, was KRW 875,006,923, and the remainder of the construction price against the plaintiff of Daeup Construction was provisionally seized as KRW 777,603,00 in excess of the remainder of the construction price, and even if the defendants requested a direct payment of the subcontract price, it shall not be deemed that the remainder of the construction price obligations against the plaintiff of Daeup Construction, which was provisionally seized as above, are not extinguished, and therefore, the plaintiff's direct payment obligations against the defendants did not occur.

However, the Plaintiff paid the subcontract price to the remaining Defendants who caused a mistake that the obligation to pay the subcontract price against the Defendants was extinguished instead of terminating the remaining obligation to pay the subcontract price, which constitutes a case where a third party, who is not a debtor, erroneously pays another person’s obligation with his/her own obligation and thereby, barring any special circumstance, the Plaintiff may claim the return of unjust enrichment against the Defendants (see Article 745(1) of the Civil Act).

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on the return of unjust enrichment and the former Subcontract Act, thereby adversely affecting the conclusion of the judgment, on the ground that the lower court’s determination that the Defendants cannot be deemed to have received subcontract consideration without any legal cause on the ground that the payment of subcontract consideration to the Defendants was reduced. The allegation in the grounds

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Plaintiff, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)