[1] Where the contractor, the original contractor, and the subcontractor agreed to the contract for construction work and the subcontractor that the subcontractor shall pay the subcontractor directly in the presence of the original contractor, and the subcontractor shall not pay 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] Article 14(1) and (2) of the former Fair Transactions in Subcontracting Act (amended by Act No. 9616, Apr. 1, 2009); Articles 105, 449, and 450 of the Civil Act; Article 227 of the Civil Execution Act / [2] Article 14(1) and (2) of the former Fair Transactions in Subcontracting Act (amended by Act No. 9616, Apr. 1, 2009); Article 105 of the Civil Act

[1] [2] Supreme Court Decision 2007Da54108 decided Feb. 29, 2008 (Gong2008Sang, 451)

Ho Ho Construction Co., Ltd. (Law Firm Suwon, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Sucheon-si (Attorney Kim Dong-dong, Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na30555 decided December 22, 2010

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

The grounds of appeal are examined.

1. In the event that the contractor and the subcontractor enter into a contract for the construction work and the subcontract together with the subcontractor agree that the subcontractor shall pay the price to the subcontractor directly in the presence of the subcontractor, and that the subcontractor shall request the subcontractor to pay the construction work directly to the subcontractor regardless of whether the construction work under the above contract and the subcontract has been actually executed or completed, it is reasonable to view that the subcontractor actually transfers his/her obligation to the subcontractor to the subcontractor and that the subcontractor, the subcontractor, who is the subcontractor, consents to the payment of the construction work. In such cases, unless the subcontractor enters into a document with the fixed date of the subcontractor’s consent to the assignment of the above assignment of the assignment of the obligation, the subcontractor may not oppose the execution creditor of the above obligation to pay the construction work price to the subcontractor within the extent that the subcontractor does not directly pay the construction price to the subcontractor and to the subcontractor within the extent that the subcontractor does not have any obligation to pay the construction price to the subcontractor within the scope of 200 years before the above order reaches or completes the scope of the subcontract price.

2. A. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the subcontractor directly claims the construction price against the subcontractor and the original contractor should not claim the construction price, since the Korea Industrial Development Co., Ltd. (hereinafter referred to as the “Korea Industrial Development”), the subcontractor, the non-party who is the subcontractor, and the Korea Nitopy Co., Ltd. (hereinafter referred to as the “Eitopy”) agreed to pay the construction price directly to the non-party and Nitopy, including the non-party and the non-party, and the non-party, the non-party, the subcontractor, and the non-party, and the non-party, the Nitopy Co., Ltd. (hereinafter referred to as the “Eitopy”), regardless of whether the construction work under the above contract and the subcontract have been actually implemented or completed, the court below determined that it is reasonable to deem that the Korea Industrial Development and the Mitopy Construction Co., Ltd. actually transferred the construction price claim against the non-party and the non-party, thereby consenting consent thereto.

B. However, the lower court’s determination is difficult to accept for the following reasons.

According to the evidence and records adopted by the court below, the defendant awarded an agreement that "I consent to the cases of direct payment to the subcontractor pursuant to Article 14 of the Fair Transactions in Subcontracting Act and Article 4 of the Enforcement Decree of the same Act" (hereinafter referred to as the "agreement of this case") that "I will give consent to the cases of payment of the subcontract price directly to the non-party while entering into a contract for the construction of this case to the Hansan Industrial Development and the Hansan Construction; the Hansan Industrial Development and the Handae Construction subcontracted the music fountain Construction to the non-party; the construction of landscape trees and facilities; the non-party's construction; the defendant's construction; the non-party; the non-party; the non-party's construction; the non-party; the non-party's 126,089,682 won which were not paid for the development of the Hansan Industrial Development as the preserved right; the provisional attachment order was delivered to the defendant on August 4, 2008; the plaintiff paid the above provisional attachment order to the non-party 2 and the non-party 360.

Examining the above facts in light of the legal principles as seen earlier, in the conclusion of the agreement of this case, the parties should be deemed to have paid the construction cost directly to the non-party, and the non-party and the Dantoia within the scope of the actual execution or completion of the construction in accordance with each of the subcontract of this case, and the defendant should not pay the construction cost to the Donto Construction, and the Donto Construction. regardless of whether the construction has been actually implemented or completed under the contract of this case and the subcontract of this case, the claim for the construction cost against the defendant should be transferred to the non-party and the Dontoia to the non-party and the Dontoia to the non-party, and it is difficult to view that the Donto Industrial Development and the Donto Construction transferred the claim for the construction cost directly to the defendant, and that the Donto Construction would not claim the construction cost.

Nevertheless, the lower court determined that the Defendant transferred the claim for construction price against the Defendant to the Nonparty and Dantoto, and that the Defendant accepted it solely on the basis of the establishment of the instant agreement. In so doing, the lower court erred by misapprehending the legal doctrine regarding the interpretation of the instant agreement or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal pointing this out has merit.

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

Justices Lee Sang-hoon (Presiding Justice)