(영문) 서울중앙지방법원 2018.08.31 2017가단32020

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(영문) 서울중앙지방법원 2018.08.31 2017가단32020

공사대금

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1. The plaintiff's claim is dismissed.

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

Reasons

1. As to the Plaintiff’s claim for the payment of the construction cost unpaid against the Defendant, the Defendant asserts to the effect that the instant lawsuit filed against the Defendant is unlawful, since the contractor of the contract concluded with the Plaintiff is not the Defendant but the Defendant Company B (hereinafter “Nonindicted Company”).

However, in litigation for performance, since a person alleged by the plaintiff as the person responsible for performance has the standing to be the defendant, the above ground for the defendant's assertion is only a ground to be judged within the main text, and it is not a matter to be determined as the party's standing before the main text. Thus,

2. The Plaintiff’s assertion asserts as follows as the cause of the instant claim. A.

The Plaintiff entered into a contract with the Defendant, the owner of the building for the construction of housing C and D (hereinafter referred to as the “instant construction”) in the Yeongdeungpo-gu, Young-gu, the Plaintiff, the owner of the building, and performed the construction work. The Defendant failed to pay the construction cost and notified the termination of the contract.

Since the defendant has paid only KRW 49,706,448 out of KRW 156,20,000, by the direct payment to the subcontractor, he shall seek payment of the unpaid construction cost of KRW 106,493,552.

B. If the defendant is not a party to the contract, but the non-party company is a party, the defendant is liable to pay the contract price in accordance with its joint and several sureties by preparing a written statement of payment (Evidence A 6) and indicating his intention to pay the contract price in addition to the contract.

C. The Defendant agreed to the effect that “the Plaintiff shall recognize the progress payment claimed by the Plaintiff, and the subcontractor shall pay it directly to the subcontractor, and shall be held liable to the Plaintiff if the Plaintiff fails to comply with it.”

However, the defendant shall pay the work price directly to the subcontractor.

유사 판례

-부산고등법원 2015.12.24 2015나2973

-서울동부지방법원 2014.12.05 2013나20344

-부산지방법원 2014.04.30 2014가단3104

-서울중앙지방법원 2017.09.20 2016가합523670

-부산지방법원 2017.06.22 2016가단309745