[1] Where the contractor, the original contractor, and the subcontractor agreed to the contract for construction work and the subcontract together, and the subcontractor agreed to the subcontractor that the contract for construction work shall be paid directly by the subcontractor in the presence of the original contractor, whether the subcontractor may oppose the execution creditor against the claim for the construction work price of the original contractor

[2] Requirements and scope of the obligation to pay to the principal contractor by the ordering person pursuant to Article 14(2) of the Fair Transactions in Subcontracting Act

[1] Where the contractor and the subcontractor agree to the contract for construction work and the subcontractor together with the contract for construction work, the subcontractor and the subcontractor agree to pay the contract price directly to the subcontractor in the presence of the original contractor, and the subcontractor do not pay the contract price to the original contractor, regardless of whether the subcontractor actually implemented or completed the construction work under the above contract and the subcontract, if the subcontractor directly requests the subcontractor to pay the contract price to the subcontractor, and the original contractor does not request the contract price, it is reasonable to view that the original contractor actually transferred the subcontractor's claim for the contract price to the subcontractor and the subcontractor's consent thereto. In this case, unless the assignment of the above assignment of the contract is done by the document with the fixed date of the subcontractor's consent, the subcontractor may not oppose the execution obligee on the above contract price claim of the original contractor on the ground of the assignment of the above assignment of the contract and the repayment of the obligation under the above contract. On the other hand, if the parties intend to pay the contract price directly to the subcontractor and do not pay the contract price to the original contractor, the scope of the subcontractor's claim for the above construction price has reached or its limit.

[2] The purpose of Article 14(2) of the Fair Transactions in Subcontracting Act is to interpret the provision of Article 14(1) of the same Act as follows: "Where the ordering person, prime contractor, and subcontractor agree to pay the subcontract price directly to the subcontractor, the ordering person shall not be obligated to pay the subcontractor the full amount of the subcontract price directly, but the ordering person shall be obligated to pay the subcontractor the subcontract price corresponding to the portion of the manufacture, repair, construction, or service performed by the subcontractor directly. It is reasonable to interpret that the obligation of the ordering person to pay the principal contractor shall be extinguished within the scope of the provision.

[1] Article 14(1) and (2) of the Fair Transactions in Subcontracting Act; Articles 105, 449, and 450 of the Civil Act; Article 227 of the Civil Execution Act / [2] Article 14(1) and (2) of the Fair Transactions in Subcontracting Act; Article 105 of the Civil Act

[1] Supreme Court Decision 89Meu2049 delivered on April 27, 1990 (Gong1990, 1150) Supreme Court Decision 2000Da2443 delivered on May 30, 200 (Gong2000Ha, 1531) Supreme Court Decision 98Da34812 delivered on June 23, 200 (Gong2000Ha, 1726) / [2] Supreme Court Decision 2007Da50717 Delivered on November 29, 207 (Gong2007Ha, 2028)

Korea Labor Welfare Corporation

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

Busan High Court Decision 2007Na736 decided July 13, 2007

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, the court below acknowledged that Es integrated construction company (hereinafter “ Es integrated construction”) was in the position of contractor under the contract for the extension of the factory of this case and made a decision as stated in its reasoning on the premise of this determination. Therefore, the Plaintiff’s ground of appeal on the premise that the court below completely excluded Es construction from the legal relationship of this case is not acceptable as it resulted from the misunderstanding of the judgment below.

2. Regarding ground of appeal No. 2

According to the judgment of the court below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the seizure of the claim for the construction price against the defendant by the subcontractor and the attachment notification against the defendant by the plaintiff against the defendant by the subcontractor is not valid, since it is proved that the work price claim against the non-party who is the contractor and the non-party who is the original contractor at the time of entering into each of the instant contract and the subcontract, belongs only to the non-party, and that the construction of ice would not exercise the right to the construction price against the defendant. This interpretation is consistent with Article 14 (2) of the Fair Transactions in Subcontracting Act, which provides that if a subcontractor's direct claim against the original contractor arises, the claim against the original contractor shall be extinguished within the extent of the occurrence of the subcontractor's direct claim against the original contractor.

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

In light of the evidence and the records admitted by the court below, the defendant entered into a contract for construction work with the Switzerland Construction Co., Ltd. on August 11, 2003, with the content that construction work for extension work for the e-dong Factory E-dong on October 1, 2003 is to be constructed in KRW 386,497,237. Upon entering into the contract for each of the above construction work, the e-site Construction Co., Ltd., the original contractor, shall subcontract all of the above construction work to the non-party, and the non-party shall execute the construction work. Upon entering into the contract for each of the above construction work, the defendant entered into the contract and the subcontract; the construction work price between E-S Construction and the non-party shall be paid directly to the non-party who is the contractor under the presence of E-S Construction Co., Ltd., the original contractor; and the plaintiff may be aware of the fact that the construction work price is not paid to the non-party who is the subcontractor and the non-party under the attachment 50197 years old construction contract.

However, in the conclusion of the instant agreement, if the intent of the parties to the contract is to transfer the claim for construction cost to the non-party to the non-party, regardless of whether the construction has been actually implemented or completed under each of the above contracts and the subcontract, and the non-party directly claims the construction cost and the construction is not requested to the non-party, it is reasonable to view that the non-party would actually transfer the claim for the construction cost to the defendant to the non-party, and that the debtor would consent to the transfer of the claim for the construction cost to the non-party. In such a case, there is no evidence to see that the construction was conducted by the non-party with the fixed date with the defendant's consent to the assignment of the above claim, and therefore, the defendant cannot oppose the plaintiff, the execution creditor for the above claim for the construction cost of the Eul Construction on June 23, 200 (see Supreme Court Decision 98Da34812, Jun. 23, 200)

On the other hand, the contract of this case is concluded with the purport that the parties concerned, to the extent that the non-party is to pay the construction price directly to the non-party and to not pay the construction price to the non-party (the purport of Article 14 (2) of the Fair Transactions in Subcontracting Act cited by the original trial is also the provision of Article 14 (1) of the Act on Fair Transactions in Subcontracting, which is referred to in the above provision, if the ordering person, the prime contractor, and the subcontractor agree to pay the subcontract price directly to the subcontractor, and the ordering person does not directly pay the subcontractor the subcontract price in full. It is not the obligation of the subcontractor to directly pay the subcontractor the subcontract price equivalent to the subcontract price manufactured, repaired, constructed, or provided by the subcontractor. It is reasonable to interpret that the obligation to pay the principal contractor to the non-party is extinguished within the scope of the contract price to the non-party's principal contractor before the notification of the seizure order of this case reaches the defendant, and the scope of the execution price is different to the non-party's claim 90-2.

Nevertheless, the judgment of the court below which held that, on the sole basis of the establishment of the agreement of this case, AS Construction does not have a claim for construction cost against the defendant, and that such circumstance may be asserted against the defendant who is the execution creditor, is erroneous in the misapprehension of legal principles as to the interpretation of the agreement of this case or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The plaintiff's ground of appeal assigning

3. Therefore, without further review, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)