(영문) 대법원 2016.9.30.선고 2014다219682 판결

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. Judgment on the Plaintiff’s grounds of appeal

A. As to the first ground for appeal

Based on its stated reasoning, the lower court determined that the subcontract price to be paid by the Plaintiff, who is the ordering person, to the subcontractor according to the direct payment agreement, is the remainder after settling accounts of the advance payment that was paid to the subcontractor by Dacheon Construction Co., Ltd. (hereinafter referred to as 'YT Construction’), the principal contractor, among the subcontract price corresponding to the portion executed by the subcontractor. In light of the relevant legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in

B. On the second ground for appeal

For reasons indicated in its reasoning, the lower court rejected the Plaintiff’s assertion that the agreement should be paid at a rate of 6% per annum from the date of advance payment as to all unused amounts, which are not the balance remaining after the Defendant deducted the advance payment from the advance payment. Examining the record in light of the relevant legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on

2. Judgment on the Defendant’s grounds of appeal

A. As to the first ground for appeal

For reasons indicated in its reasoning, the lower court determined that the advance payment of this case does not include the employment insurance premium and industrial accident compensation insurance premium that have not been actually paid. Examining the record in light of the relevant legal principles, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the calculation of the advance payment amount.

B. On the second ground for appeal

(1) The purport of Article 14(2) of the former Fair Transactions in Subcontracting Act (amended by Act No. 12709, May 28, 2014) is to interpret that, in cases where an agreement is reached between the ordering person, the prime contractor, and the subcontractor to pay the subcontract price directly to the subcontractor, the ordering person is not obligated to pay the subcontract price in full directly to the subcontractor, but the subcontractor is obligated to pay the subcontract price equivalent to the portion manufactured, repaired, constructed, or provided by the subcontractor directly to the subcontractor. It is reasonable to interpret that the obligation of the ordering person to pay the principal contractor is extinguished within the scope of the said obligation (see Supreme Court Decisions 2007Da54108, Feb. 29, 2008; 201Da63111, Sept. 12, 2013).

(2) The lower court acknowledged the following facts by citing the reasoning of the first instance judgment.

(A) On August 26, 2011, the Plaintiff entered into a contract under which the construction work for the relocation of the headquarters within the innovation city in the Jung-gu Seoul Special Metropolitan City is KRW 18,581,374,00, and six hundred (600) days from the date of the commencement of the construction (hereinafter “instant contract”).

(B) On January 19, 2012, non-construction entered into an advance payment guarantee agreement (hereinafter “the instant advance payment guarantee agreement”) with the Defendant to guarantee the Plaintiff’s obligation to the Plaintiff by failing to perform the obligation to return to the Plaintiff due to the failure to pay the advance payment to the Plaintiff, the secured creditor, the guaranteed amount of KRW 542,494,000, advance payment of KRW 500,000,00, and the guarantee period of KRW 500,000 from January 19, 2012 to June 18, 2013. On January 20, 2012, the Plaintiff was paid the advance payment of KRW 50,000,00 (hereinafter “instant advance payment”).

(C) In relation to the return of advance payment among the terms and conditions of performance pursuant to the “terms and conditions of performance pursuant to the advance payment” agreed with the Plaintiff after having received the advance payment from the Plaintiff, a party under the contract (construction without charge) shall return the balance of the advance payment without delay in any of the following cases after having received the advance payment: Provided, That in a case where the contract is returned due to the other party’s cause attributable to the other party, the balance of the advance payment shall be returned by adding the agreed party’s interest to the advance payment amount. 1. In a case where the contract is rescinded or terminated; 3. In a case where the contract is terminated or terminated, the construction (the Plaintiff) shall preferentially appropriate the balance of the advance payment to the unpaid amount. However, if there is any unpaid amount of the advance payment at the time of the request for return under the provisions of paragraphs (1) and (2) of this Article, the payment guarantee under the Framework Act on the Construction Industry and the Fair Transactions in Subcontracting Act has not been made, the balance of the advance payment can be offset.

(D) After that, the Plaintiff agreed to pay the subcontract price directly to the subcontractor as follows. In other words, on March 21, 2012, the Plaintiff and the instant joint contractor agreed to pay the subcontractor the subcontract price directly with the subcontractor who subcontracted part of the construction work from the instant joint contractor and joint contractor. On May 8, 2012, the Plaintiff and the instant joint contractor agreed to pay the subcontractor the subcontract price of KRW 1,512,50,000 for the construction work of the machinery and equipment between the subcontractor and the subcontractor on March 21, 2012, KRW 47,300,000 for the payment of the subcontract price for the construction work between the Dan Construction Co., Ltd. and the Plaintiff on July 2, 2012, each of the instant joint contractor paid KRW 619,300,000 for the construction work of the instant case to the Plaintiff at the time of seizure of the claim for the construction price by the said joint contractor against the Plaintiff.

(F) On February 6, 2013, the Plaintiff demanded the return of the amount not used among the instant advance payment to the Incheon Construction, but was unable to receive due to the deterioration of management due to the failure to manage the construction. On February 26, 2013, the Plaintiff sent to the Defendant an official document demanding the Defendant to pay the amount not used in advance under the instant advance payment guarantee agreement and the total amount of KRW 154,330,229.

(G) On March 5, 2013, Japan L&C Co., Ltd entered into a modified contract with the Plaintiff to withdraw from the instant joint supply and purchase organization with the content that it would allow the Plaintiff to withdraw from the instant joint purchase and purchase organization. On the other hand, in the meantime, it used KRW 84,250,000 out of the instant advance payment received from the Plaintiff by February 5, 2013, around the time of advance payment settlement.

Based on the foregoing factual basis, the lower court presumed that the instant contract was lawfully terminated due to the Plaintiff’s withdrawal from the instant joint contractor, and the Defendant is obligated to pay the Plaintiff the amount calculated by deducting the accrued construction cost from the pre-use advance that the Plaintiff should return to the Plaintiff under the instant advance payment guarantee contract. In relation to the scope of the subcontract price excluded from the pre-paid construction cost that the Plaintiff should return from the advance payment, the lower court determined that the unpaid amount should be appropriated as the advance payment until the time when the cause for the Plaintiff’s return of the advance payment arises even after the receipt of the attachment order of the pre-paid tax book was appropriated as the advance payment, and thus, the unpaid amount should be appropriated as the advance payment until February 5, 2013 (including the parts executed by the subcontractor) and the unpaid amount of the construction cost corresponding to the pre-paid construction cost, but the Plaintiff and the subcontractor should return to the Plaintiff the remainder of the pre-paid construction cost equivalent to the pre-paid construction cost amount to 20,000.

(3) Examining the reasoning of the judgment below in light of the aforementioned legal principles, in the event that the Plaintiff is obligated to pay the subcontract price directly to the subcontractor while entering into the instant contract, the part corresponding thereto should be excluded from the pre-paid construction cost, barring any special circumstance, and thus, the subcontract price corresponding to the portion executed by the subcontractor who entered into the direct payment agreement should be excluded from the pre-paid construction cost description. However, in the instant case where the pre-paid construction contractor attached the claim for the construction cost against the Plaintiff around October 17, 2012 and preserved its execution, the pre-paid construction contractor’s claim for the pre-paid construction cost should not be extinguished within the scope of the pre-paid construction cost claim against the Plaintiff. Thus, insofar as it cannot be deemed that the Plaintiff is obligated to pay the pre-paid construction cost within the limit of the amount preserved by seizure, the pre-paid construction cost should also be refunded to the Plaintiff according to the pre-paid construction contract.

Nevertheless, solely on the grounds stated in its reasoning, the lower court determined that all the subcontract consideration corresponding to the portion executed by the subcontractor by the subcontractor until February 5, 2013, where the grounds for return of advance payment arose, should be excluded from the pre-paid construction cost to be deducted from the pre-paid construction cost and may oppose the execution creditor. In so determining, the lower court erred by misapprehending the legal doctrine on the occurrence of the right to claim a direct payment of subcontract consideration and the exceptional settlement agreement on advance payment, thereby adversely affecting the conclusion

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.