Title
Where a third party has attached a claim for the construction price of a contract in good faith, the contractor shall not claim the invalidity of the contract to the person entitled to a provisional seizure.
Summary
Where a third party has attached the claim for the construction price of a contract in good faith, the contractor cannot assert that the contract is null and void, so if the contractor actually performed the construction work, the contractor shall not deny the provisional attachment of the claim for the construction price even if the contractor did not perform the construction work.
Cases
2011Provisional 14383 Construction Price, etc.
Plaintiff
Limited Company AA Construction
Defendant
BB et al.
Conclusion of Pleadings
January 10, 2012
Imposition of Judgment
January 31, 2013
Text
1. Defendant BB shall pay to the Plaintiff 00 won with the interest of 5% per annum from November 30, 201 to January 31, 2013, and 20% per annum from the next day to the day of full payment.
2. The plaintiff's remaining claims against the defendant BB and the defendant's claims against Korea are dismissed, respectively.
3. Of the costs of lawsuit, 1/2 of the portion arising between the Plaintiff and the Defendant Company BB shall be borne by the Plaintiff, and the remainder by the Defendant BB, respectively, by the Plaintiff and the Defendant Korea, by the Plaintiff.
4. Paragraph 1 can be provisionally executed.
Purport of claim
Defendant BB paid to the Plaintiff the amount of KRW 000 and the amount of KRW 5% per annum from the date of service of a copy of the complaint of this case until the date of the decision of this case, and the amount of KRW 20% per annum from the next day to the date of full payment. Defendant BB, on September 22, 2011, paid by Defendant BB to Nonparty DD Construction Co., Ltd., the execution of attachment of KRW 000,000, which is paid by Defendant BB to Nonparty DD Construction Co.
Reasons
1. Basic facts
A. On February 9, 2011, the Plaintiff entered into a contract with Defendant BB (hereinafter “Defendant BB”) on the construction of the total construction cost of the instant construction work at KRW 000 (excluding value-added tax) for the construction of the O-type 000 O-type 00 and the 4-dong factory facilities extension works on the ground of two lots, located in the Cheongnam-gun, Seoul-gun, the ownership of Defendant BB (hereinafter “instant construction”).
B. However, with the understanding of Defendant BB without a comprehensive construction license, the Plaintiff entered into a contract with the Plaintiff as the original contractor of the instant construction, and the Plaintiff as the subcontractor, after obtaining a license for the EE Integrated Construction (hereinafter referred to as “D Construction, including Non-Party DD Construction Co., Ltd., and dissolution on March 18, 201, and hereinafter referred to as “D Construction”) from Non-Party DD Construction Co., Ltd., with a view to having no comprehensive construction license. In addition, as of June 29, 2011, Defendant BB demanded Defendant BB to prepare a contract with the Plaintiff at KRW 000,000 for the construction cost for convenience in the course of receiving loans from financial institutions, and prepared a formal contract with Defendant BB and DD Construction as of June 29, 2011, whose construction cost is KRW 000 (value-added tax separate).
C. On June 29, 201, when the instant construction is in progress, the Plaintiff agreed with Defendant BB to receive a direct payment of the construction cost of the instant construction from Defendant BB. In addition, on September 19, 201, the Plaintiff agreed with Defendant BB on September 19, 201, when the instant construction is completed, that the remainder construction cost of KRW 230,000,000 (excluding value-added tax) shall also be paid directly from Defendant BB.
D. On September 22, 2011, Defendant Republic of Korea attached an amount of money up to the above KRW 000 out of the construction cost obligations that Defendant BB shall pay to DD Construction with the claim for national tax of KRW 000,000, in total, due to DD Construction’s default.
[Grounds for Recognition] Unsatisfy, entry of Gap evidence 1 to 6, 9 (including each number), the purport of the whole pleadings
2. Determination as to the claim against Defendant BB
A. Determination on the cause of the claim
The Plaintiff completed the instant construction on or around September 19, 201, and the fact that Defendant BB’s remainder of the construction that Defendant BB should pay to the Plaintiff at the time was KRW 230,000,000 (value-added tax separate) is as seen earlier. Therefore, Defendant BB is obligated to pay the Plaintiff the said KK and its delay damages, barring any special circumstance.
B. Determination as to the defense, such as set-off by Defendant BB
1) Defendant BB asserts that the payment of construction cost should be substituted for the Plaintiff’s payment of value-added tax because the Plaintiff did not report the value-added tax at the tax office. As such, Defendant BB paid KRW 000 to the Plaintiff on August 16, 201, the fact that Defendant BB paid KRW 150,000 as value-added tax to the Plaintiff on August 16, 201 does not conflict between the above parties. Accordingly, the Plaintiff issued a tax invoice for KRW 150,000 for the construction cost received from Defendant BB and reported it to the tax office, and thus, Defendant BB would be settled upon receiving a refund from the competent tax office. However, there is no evidence to prove that the Plaintiff reported the value-added tax at the tax office. Therefore, the Plaintiff’s assertion is without merit, and Defendant BB’s aforementioned defense is with merit.
2) Defendant BB made an explanation of the performance of the additional construction works with respect to the Plaintiff and the instant construction work, and set up an explanation of the performance of the additional construction works. Defendant B’s defense against the remainder payment claim to be paid by Defendant BB due to the aggregate of the additional construction cost and the additional construction cost arising from defective construction in the foregoing statement of performance. In full view of the purport of the arguments as a whole as to the appraisal result of Plaintiff BB and Nonparty BB, the contractor at the site of the instant construction work, and NonpartyG, the contractor at the site of the instant construction, were to perform the additional construction works within 20 days after the completion of the construction, including the Plaintiff’s statement of performance of the additional construction works, and the Plaintiff’s claim for the additional construction works, other than the above additional construction works, was also required for the said additional construction works, and the costs expected to be required for the said additional construction works are set off against the Plaintiff’s total amount of KRW 100,000,000,000,000 for the said additional construction works.
3) Defendant BB did not pay 0.0 billion won for the above 20. The above 00 GM 2 and the above 00. The above 00 GM 1 and the above 200. The above 00 GM 1 and the above 00. The 00 KM 1 and the above 00. The above 00 KM 1 and the above 100 KM 1 and the remainder of the 00. The 00 KM 1 and 00 of the 00 KM 1 and 00 of the 00 KM 1 and 00 of the 00 KM 1 and 00 of the 200 KM 1 and 00 of the 200 KM 1 and 00 of the 200 KM 1 and 00 of the 1 and 00 of the 200 NM 1 and the 200 of the 1 and the 201.
4) Defendant BB: The construction cost of the instant construction project between the Plaintiff and the Plaintiff is KRW 000;
On April 30, 2011, the scheduled completion date of works, agreed on April 30, 201 as 1/1000 of the construction cost for delay, and the Plaintiff.
As the Plaintiff completed construction around September 20, 201, more than April 30, 201, which was delayed than 143 days prior to the agreed completion date, around September 30, 201, the Plaintiff demanded to pay Defendant BB a penalty of delay of KRW 000,00. The Plaintiff asserts that the foregoing claim for delay of delay of the construction would be offset against the foregoing claim for delay of the construction payment. In full view of the overall purport of the pleadings in the evidence No. 3-1, it can be recognized that the initial construction completion date was scheduled as April 30, 2011. Meanwhile, in full view of the evidence No. 5 and evidence No. 6-2, the Plaintiff and Defendant BB did not make an agreement on the completion date of the construction work as of June 29, 201 with the Plaintiff’s written subcontract No. 30 as of June 30, 2011, the Plaintiff and Defendant BB’s written defense as to the completion date of construction work as of the date of the construction work.
5) Lastly, Defendant BB’s assertion that, while preparing a statement of performance of additional construction works with the Plaintiff, Defendant BB should calculate the Plaintiff’s claim amount on the premise that the additional construction is completed, Defendant BB’s claim amount should be assessed on the premise that the additional construction is completed, as long as Defendant BB made a defense, such as set-off, by setting up damages claim against the Plaintiff, as long as the Plaintiff’s additional construction works were completed, Defendant BB would pay KRW 00 among the construction cost after approving the completion of the construction works. However, the Plaintiff did not complete the additional construction works. Therefore, Defendant BB’s allegation is without merit.
C. Sub-committee
Therefore, Defendant BB is obligated to pay to the Plaintiff damages for delay calculated at each rate of 20% per annum as stipulated in the Civil Act until January 31, 2013, which is the date following the day of service of a copy of the complaint of this case, to the Plaintiff (i.e., KRW 000 - KRW 000 - KRW 000) and the following day of service of a copy of the complaint of this case, which is reasonable for Defendant BBB to dispute on the existence and scope of the obligation.
3. Determination on the claim against Defendant Republic of Korea
A. The plaintiff's assertion
In fact, the Plaintiff independently executed the instant construction work under the name of DB after obtaining a license from DD Construction without any comprehensive construction license from DD Construction. The construction contract between DD Construction and Defendant BB falls under the name prohibited by Article 21(1) of the Framework Act on the Construction Industry, and thus, Defendant BB does not have any obligation to pay the construction price to DD Construction insofar as the contract between DD Construction and Defendant BB falls under the name of the name prohibited by Article 21(1) of the Framework Act on the Construction Industry, and as long as Defendant BB received a letter of non-disclosure from Defendant BB, there is no obligation to pay the construction price to DD Construction. Therefore,
(i) Article 21 (Prohibition of Lending and Arranging Construction Business Registration Certificates, etc.);
(1) No constructor shall allow any third person to contract or perform construction works by using his/her name or trade name, or lend his/her construction business registration certificate or construction business registration pocket book to any third person.
B. Determination
1) If a contractor, who is not registered as a comprehensive constructor, enters into a construction contract with a contractor and executes a construction work after entering into a written contract under the agreement of the parties by indicating the name of the contractor under the agreement of the parties as a comprehensive constructor, the contract agreement entered into between the said contractor and the subcontractor shall be deemed null and void as a false declaration of agreement. However, in case where a third party imposes in good faith a provisional attachment on the claim for the construction price of a contract based on a false declaration of agreement, the provisional attachment right holder constitutes a bona fide third party who has a new legal interest after provisional attachment based on the false declaration, and pursuant to Article 108(2) of the Civil Act, the contractor cannot assert that the contract is null and void by the false declaration of agreement, and if the contractor actually performs the construction work, the order owner shall not deny the effect of provisional attachment on the claim for the construction price even if the said contractor was not performing the construction work (Supreme Court Decision 2006Da45855 Decided 23,
2) The validity of a contract for a construction project concluded between Defendant BB and DD Construction
As seen earlier, since the Plaintiff entered into a construction contract with Defendant BB and the Plaintiff did not have a comprehensive construction license, the Plaintiff was the original contractor of the instant construction project with the loan of DD construction license, and the Plaintiff was the subcontractor, and the Plaintiff was the subcontractor. According to the above recognition facts, DD construction is merely a nominal original contractor, and the Plaintiff actually agreed to take charge of the instant construction project. Thus, even if Article 21(1) of the Framework Act on the Construction Industry prohibits a loan of construction registration certificate, etc., the validity of the construction contract in violation of the provision alone cannot be deemed null and void, but the act of preparing a written construction contract between Defendant BB and DD construction constitutes a false declaration under mutual agreement.
3) Determination on Defendant Republic of Korea’s defense
In regard to this, even if the act of preparing a contract for a construction project between Defendant BB and DD Construction is null and void as a false declaration, Defendant BB and DD Construction is a bona fide third party who has a legal interest based on the above legal act, and the Plaintiff cannot assert against Defendant BB on the ground that the above legal act was null and void. Accordingly, the Plaintiff’s defense against Defendant BB cannot be asserted that the above legal act was null and void. The fact that Defendant BB made a contract for a construction project which is the original contractor of DD as the contractor is as seen earlier, and according to the evidence evidence No. 1, the fact that DD construction reported value-added tax pursuant to the above contract contents and confirmed the tax liability for DD construction in the Republic of Korea. The Defendant Republic of Korea is a bona fide third party who attached the obligation to pay the construction price to Defendant BBD Construction without knowing that the act of preparing a contract for a construction project between Defendant BB and DD construction and the report of value-added tax was null and void. Therefore, the Plaintiff’s defense against the above Defendant’s Republic of Korea is without merit.
4. Conclusion
Therefore, the plaintiff's claim against the defendant BB shall be accepted within the scope of the above recognition, and the remainder shall be dismissed as it is without merit. The plaintiff's claim against the defendant Republic of Korea shall be dismissed as without merit. It is so decided as per Disposition.