In a case where Company A subcontracted the construction work from Company B to Company C after receiving a subcontract for part of the construction work, and Company C entered into a direct payment agreement with Company B to receive a direct construction work payment, and Company A’s creditors et al. received a provisional attachment order against Company B’s claim for construction work payment against Company B before the direct payment agreement and served on Company B, the case holding that Company C did not have a direct claim against Company B.

In a case where Company A subcontracted the construction work from Company B to Company C after receiving a subcontract for part of the construction work, and Company C concluded direct payment that Company B would receive direct construction work from Company B before the direct payment was made, and Party B’s creditor et al. received a provisional attachment order against Company B’s claim for construction work, and each decision was served on Company B, the case holding that the above claim for construction work payment was not created on the ground that the provisional attachment order which was made before the direct payment was effective is limited to the total amount of construction work payment for Company B, and the above claim for construction work payment was not extinguished notwithstanding the direct payment agreement.

Article 14 (1) 2 and (2) of the Fair Transactions in Subcontracting Act

Dai Special Construction Co., Ltd. (Attorney Haap-soo, Counsel for the defendant-appellant)

Han Construction Co., Ltd. (Attorney Han-soo et al., Counsel for defendant-appellant)

February 6, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 20,680,000 won with 5% interest per annum from April 19, 2013 to the sentencing day of this case, and 20% interest per annum from the next day to the day of full payment.

1. Determination as to the cause of claim

A. Facts of recognition

1) On April 201, 2011, Samsan International Co., Ltd. (hereinafter referred to as the “TeoNC”) was awarded a subcontract for construction works among the construction works for the construction works for the facilities for the treatment of sludge, which are located in the Seosan River, the Defendant contracted from the Defendant for the construction works for the construction works for the facilities for the treatment of sewage.

2) Samna Co., Ltd re-subcontracted the Plaintiff with the payment of the construction cost of KRW 58,080,000 to the sculpture, US, waterproof, and other works during the said construction.

3) On February 28, 2013, Samien entered into an agreement on the settlement of accounts with the Defendant at KRW 1,068,100,00 (i.e., the supply price of KRW 971,00,000 + value of KRW 97,10,000). The unpaid construction price up to that time was KRW 87,426,90 ( = supply price of KRW 79,479,00 + value-added tax of KRW 7,947,90).

4) On February 18, 2013, Samenna prepared a written consent to direct payment of the construction cost of KRW 18,480,000 (request) with respect to the Plaintiff’s direct payment of the construction cost from the Defendant. After signing a written consent from the Defendant on April 18, 2013 with the seal affixed on the written consent to direct payment of the construction cost of KRW 18,480,00.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 3, Eul evidence 1 to 3 (including each number), the purport of the whole pleadings

B. Determination

According to the above facts, it is reasonable to view that there was a direct payment agreement on April 18, 2013 (hereinafter “instant direct payment agreement”) between the Defendant, Samna C&C, and the Plaintiff. Therefore, barring any special circumstance, the Defendant is obligated to directly pay the Plaintiff KRW 18,480,000 for the re-subcontract pursuant to Article 14(1)2 of the Fair Transactions in Subcontracting Act.

On the other hand, even if the plaintiff completed construction work on June 30, 2012 at the request of the Seocho River on the Seocho River's early January 2012, the plaintiff did not receive KRW 2,200,00 of the additional construction cost. Thus, the defendant is also obligated to pay the above amount to the plaintiff. However, it is not sufficient to recognize that the plaintiff was the additional construction work, as alleged by the plaintiff, and even if the additional construction work was done as alleged by the plaintiff, it cannot be deemed that the additional construction cost was included in the direct payment agreement of this case, and thus, the defendant is not obligated to pay the additional construction cost. Thus, the plaintiff's assertion about this is without merit.

2. Judgment on the defendant's assertion

A. The defendant's assertion

The defendant asserts to the effect that prior to the instant direct payment agreement, the defendant cannot respond to the plaintiff's claim, as he had already received a provisional attachment order on the claim for construction price against the defendant by Sami-NC's other creditors.

B. Determination

1) In light of the provisions of Article 14(2) and Article 14(1)2 of the Fair Transactions in Subcontracting Act, "the case where the ordering person, prime contractor, and subcontractor agree to pay the subcontract price directly to the beneficiary," while the ordering person does not have an obligation to directly pay the subcontractor the subcontract price to the subcontractor. However, the subcontractor's obligation to directly pay the subcontractor the subcontract price corresponding to the portion of manufacture, repair, construction, or service performed by the subcontractor is extinguished within the scope of the obligation to directly pay the subcontractor. (See Supreme Court Decision 2007Da54108, Feb. 29, 2008, etc.). However, inasmuch as there is no provision excluding the effect of compulsory execution or preservation execution conducted prior to the occurrence of the cause for direct payment of the subcontract price under the above provisions, if a third creditor of the prime contractor before the cause for direct payment of the subcontract price occurs due to the seizure or provisional seizure against the ordering person, etc., the obligation to directly pay the subcontract price to the subcontractor within the scope of the obligation to directly compensate for the subcontractor (see Supreme Court Decision 2009Da636.

2) According to the evidence Nos. 4-1, 2, and 5-2 of the evidence Nos. 4-1, 5-2 as to the instant case, the following facts are met: (a) Of the claim for the construction cost against the Defendant of Samcheon-Cenc, the Nonparty received a provisional attachment order of claim No. 20,866,000 on January 10, 2013 by the Daejeon District Court 2012Kadan99, and the above decision was served on the Defendant on January 11, 2013; and (b) as to the KRW 43,450,00 on February 4, 2013, the Geum Young-gu District Court 2013Kadan811, which received the provisional attachment order from the Defendant on February 6, 2013, the above provisional attachment order of claim No. 30,86,000 was effective, and thus, the claim amount of the construction cost of the instant case did not come into force before the provisional attachment agreement was concluded.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed for reasons.

Judges Gangwon-do;