The case holding that although there was a fact that the head of the site office of a construction project owner prepared an agreement with the contractor and paid the subcontractor the subcontract price to the subcontractor in accordance with the agreement, such agreement was not in the form of agreement between the client, the prime contractor, and the subcontractor, and the prime contractor requested the subcontractor to pay the subcontract price directly to the subcontractor, it does not constitute the case where the ordering person should pay the subcontract price directly to the subcontractor, and the contract does not constitute the case where the ordering person, the prime contractor, and the subcontractor agreed on the purport that the subcontractor should pay the subcontract price directly to the subcontractor, and the method and procedure of the payment thereof.

The case holding that although there was a fact that the head of the site office of a construction project owner prepared an agreement with the subcontractor to pay the subcontract price to a person who holds the power of delegation of the principal contractor, and accordingly paid the subcontractor the subcontract price, such agreement was not in the form of an agreement between the ordering person, the principal contractor, and the subcontractor, and the principal contractor requested the subcontractor to pay the subcontract price directly, it does not fall under the case where the ordering person should pay the subcontract price directly to the subcontractor, and it does not fall under the case where the ordering person, the principal contractor, and the subcontractor agreed on the method and procedure of the payment thereof under Article 4 (1) 2 of the Enforcement Decree of the Fair Transactions in Subcontracting Act (amended by Presidential Decree No. 18146, Nov. 29, 2003).

Article 14 of the former Fair Transactions in Subcontracting Act (amended by Act No. 7107 of Jan. 20, 2004); Article 4 (1) 2 of the former Enforcement Decree of the Fair Transactions in Subcontracting Act (amended by Presidential Decree No. 18146 of Nov. 29, 2003)

Gaba Co., Ltd.

Along Construction Co., Ltd. (Law Firm Affiliated, Attorney Lee Hon-hoon, Counsel for defendant-appellant

d.9.29

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 25,781,153 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking account of the whole purport of the pleadings in the testimony of Gap 1, 2, 5, Eul 1-1 to 5, Eul 2-2-1, 2, 3, Eul 3, and the witness static family members.

A. On September 2, 2003, the Defendant received from the non-party Young-gu Co., Ltd. a contract for the part of the construction work of the construction work of the construction work of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the construction of the Young-gu Seo-dong, Busan. On October 2003, the Defendant subcontracted the construction work of the construction of the construction to the non-party 859,430,000 construction cost to the non-party Yan-gu and the non-party Yan-gu. The construction of the construction of the instant case was sub-subcontracted

B. On October 20, 2003, the Plaintiff entered into a transport contract for the transport of dump trucks necessary for the instant construction, and did not receive the transport charges. On December 23, 2003, the Plaintiff was not paid the transport charges. On December 23, 2003, Ulsan District Court 2003Kadan24352 on the ground that dump truck transport charges of KRW 23,981 were claims against dump truck construction, the Plaintiff’s creditor, debtor dump construction, third debtor and non-party dump truck charges of KRW 23,982,311 on the ground that dump truck transport charges of the Defendant against sump truck and the third debtor were provisionally attached an amount equivalent to the above claim amount among the claim amount of dump truck transport charges claims against sump construction, and received the above provisional seizure order from the Daegu District Court 2004Kadan6137, 2003.

2. Judgment on the plaintiff's claim

A. Determination as to the assertion that a contract of carriage was concluded between the construction and the defendant

First of all, the plaintiff asserts that, since the contract of carriage for the construction of this case was entered into between Masan Construction and the defendant and the construction of Masan Construction have a transportation charge against the defendant, the defendant is obligated to pay the plaintiff the amount equivalent to the above claim amount to the plaintiff, who is the creditor subject to the seizure and collection order regarding the above claim, but there is no evidence to acknowledge that the contract of carriage was entered into between Masan Construction and the defendant. Thus, this part of the plaintiff's assertion is without merit (the fact that the defendant subcontracted the construction of this case to Masan Construction and Masan Construction, and re-subcontracts the construction of this case to Masan Construction).

B. Judgment on the assertion that the Defendant guaranteed the payment of the Plaintiff’s claim for transportation charges

In addition, the plaintiff asserts that the defendant guaranteed the plaintiff's obligation to pay the transportation fee claim to the plaintiff. However, since the defendant guaranteed the plaintiff's obligation to pay the transportation fee claim to the plaintiff, there is no evidence to acknowledge each of the evidence Nos. 3 and 6 alone. Thus, the plaintiff's above assertion is without merit.

C. Determination as to the Defendant’s assertion that he/she agreed to pay transport charges on the direct payment of transport charges

(1) The plaintiff's assertion

The plaintiff asserts to the purport that the defendant is obligated to pay the plaintiff's compensation for the subcontract price for the sewage pay directly to Masan Construction, which is the sewage supplier of Masan Construction, and thus, the defendant is obligated to directly pay the transport charges for the rent pay of Masan Construction. Accordingly, the defendant is obligated to seize the transport charges claim against the defendant of Masan Construction and pay the amount equivalent to the above claim to the plaintiff who received the collection order.

(2) Relevant provisions

(A) Article 14 of the former Fair Transactions in Subcontracting Act (amended by Act No. 7107 of Jan. 20, 2004)

(1) Where any ground prescribed by Presidential Decree occurs, such as where a principal contractor is unable to pay the subcontract consideration due to his/her bankruptcy, dishonor, etc., the person ordering shall directly pay the subcontract consideration equivalent to the portion manufactured, repaired or constructed by the subcontractor to the relevant subcontractor.

(2) Where any cause under paragraph (1) occurs, the obligation to pay the price to the principal contractor by the ordering person, and the obligation to pay the subcontract price to the subcontractor by the principal contractor shall be deemed extinguished within the scope of such obligation

(3) Where the prime contractor requests the suspension of direct payment of the subcontract price concerned with the documents proving the fact that the subcontractor delays payment of wages, price of materials, etc. in connection with the subcontract concerned, the ordering person may not pay the subcontract price directly notwithstanding the provisions of paragraph (1).

(B) Article 4 of the former Enforcement Decree of the Fair Transactions in Subcontracting Act (amended by Presidential Decree No. 18146, Nov. 29, 2003)

(1) The case where the ordering person shall directly pay the subcontract price to the subcontractor under Article 14 (1) of the Act, shall be as follows:

1. Where a principal contractor becomes unable to pay the subcontract price due to his/her bankruptcy or dishonor, or cancellation of permission, authorization, license, registration, etc. for his/her business, and the subcontractor requests the direct payment of the subcontract price;

2. When the ordering person, the prime contractor and the subcontractor have agreed on the purport that he shall pay the subcontract price directly to the subcontractor, and the method and procedure for such payment.

3. Case where the prime contractor fails to pay the subcontract price payable under Article 13 (1) or (3) of the Act twice or more, and the subcontractor requests a direct payment of subcontract price.

4. Case where the prime contractor fails to perform the obligation to guarantee the payment of subcontract consideration under Article 13-2 (1) of the Act, and the subcontractor requests a direct payment of subcontract consideration.

(2) 3 omitted.

(3) Determination

The contract between a contractor and a subcontractor under the Civil Act is separate from a subcontract between a contractor and a subcontractor, and in principle, the subcontractor and a subcontractor do not have any rights and obligations under the direct contract. Thus, barring any special circumstances, a subcontractor may not claim a subcontract price against a subcontractor. However, according to the Fair Transactions in Subcontracting Act and the Enforcement Decree of the former Act, the ordering person shall pay the subcontract price directly to the subcontractor, and in such case, the obligation to pay the subcontractor and the obligation to pay the subcontractor for the subcontractor for the payment of the subcontract price shall be deemed extinguished within the scope of the said obligation, unless there are special circumstances.

In light of the overall purport of arguments, the non-party Cheongcheon, which was the defendant's on-site manager, was unable to make an agreement on the transportation of soil and sand from October 6, 2003 to the closing date of the construction work, on October 29, 2003 to the effect that "it is difficult to make an agreement on the transportation of soil and sand from October 6, 2003 to the closing date of the construction work" to the effect that "it is difficult to acknowledge that the plaintiff's direct payment of the construction cost was made to the plaintiff's on-site subcontractor's behalf of the power of attorney, and it is not possible to recognize that the defendant's direct payment of the construction cost was made to the non-party Y, who was the vice president of Seosan Construction and the representative director, and the defendant's direct payment of the construction cost was made to the plaintiff's on-site." However, it is not possible to recognize that the defendant's direct payment of the construction cost was made to the plaintiff's on-site subcontractor's own behalf of the defendant.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges fixed-term