Attachment and collection order concerning the claims prohibited from seizure under Article 88 of the Framework Act on the Construction Industry and Article 84 of the Enforcement Decree of the Framework Act on the Construction Industry

Article 88 of the Framework Act on the Construction Industry, Article 84 of the Enforcement Decree of the Framework Act on the Construction Industry

Supreme Court Decision 2000Da21048 Decided July 4, 200 (Gong2000Ha, 1835) Supreme Court Decision 2007Da29591 Decided September 6, 2007

Plaintiff, Ltd.

Defendant Co., Ltd. (Law Firm Sejong Chang, Attorneys Kim Hyun-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na12823 decided January 10, 2008

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

We examine the grounds of appeal.

1. The prohibition of seizure of the amount equivalent to wages to be paid to workers of the construction work in question out of the contract amount of the construction work for which the constructor receives a contract under Article 88 of the Framework Act on the Construction Industry and Article 84 of the Enforcement Decree of the Framework Act on the Construction Industry is derived from the demand of social security under the Constitution to guarantee workers' right to live at a minimum. Since the Labor Standards Act which recognizes workers' right to preferential payment as to workers' wage and other provisions are to guarantee workers' livelihood stability in addition to the Labor Standards Act which recognizes workers' right to preferential payment, an order of seizure against a claim the seizure of which is prohibited shall be null and void because it violates the compulsory law, and where a seizure which is the premise of a collection order is null and void, it shall not be deemed null and void under the substantive law, even if it does not become null and void under the procedural law, and therefore, the third obligor may defend against the creditor's claim for the payment of the debt (see Supreme Court Decision 2007Da29591, Sept. 6, 2007).

In full view of the admitted evidence, the court below recognized that the amount of KRW 787,530,209, out of the construction price payable in the amount of KRW 1,825,522,044 against the defendant of the non-party corporation, is equivalent to the amount of wages that should be paid to the employees of the non-party corporation. The above KRW 787,530,209, out of the provisional attachment decision of this case, is null and void as seizure of the claim prohibited from seizure, and the remainder of KRW 1,037,91,835, as argued in the Grounds for Appeal, is just and there is no error of misapprehending legal principles as to the effect of seizure

2. The court below rejected the defendant's defense that the defendant suffered losses from the completion of the construction in this case due to the delay of the completion of the construction in the non-party corporation's delay, and thus offset the above damage claim against the defendant's obligation to pay the construction price against the non-party corporation's automatic claim. In light of the records, the court below's above determination is just, and there is no error of law such as incomplete deliberation, lack of reasons, failure of reasons, and failure of reasons, etc. as alleged in the grounds of appeal.

3. Furthermore, the court below acknowledged the fact that the non-party corporation submitted a letter of waiver of construction work to the defendant on March 13, 2006, and that the non-party corporation was not likely to complete construction work within the date agreed upon, and notified the termination of the construction contract to the non-party corporation on the same day, and the non-party corporation is obligated to pay the contract deposit equivalent to 10% of the contract amount according to the estimate of liquidated damages to the defendant. As of October 4, 2005 when the provisional attachment decision of this case was delivered to the defendant, the obligation to pay the non-party corporation to the non-party corporation to the non-party corporation still remains in excess of the claim amount of the provisional attachment decision of this case as of October 4, 2005. The above judgment of the court below is just, and there is no error of law such as incomplete deliberation, lack of reasons

4. Meanwhile, the non-party corporation obtained unjust enrichment equivalent to KRW 542,676,768 by receiving payment of construction cost in excess of the amount of the original construction work from the defendant, and thus, the ground of appeal asserting that the above claim for return of unjust enrichment is offset against the defendant's obligation to pay construction cost against the non-party corporation's automatic claim, and the ground of appeal alleging that the contract relationship between the non-party corporation and the defendant extinguished retroactively, thus the provisional attachment decision in this case becomes null and void is the first raised at this court, and

5. 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 Ahn Dai-hee (Presiding Justice)