A.N. Co., Ltd. (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Seocho Construction Co., Ltd. (Law Firm Site, Attorneys Lee Jong-sung et al., Counsel for the plaintiff-appellant)

December 10, 2013

1. The defendant shall pay to the plaintiff 125,00,000 won with 20% interest per annum from June 6, 2012 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Determination as to the cause of claim

According to the overall purport of Gap evidence Nos. 1 through 2, Eul evidence Nos. 1 and Eul evidence Nos. 1 and the whole purport of the pleadings, ① The non-party M&S corporation (hereinafter "non-party company") was awarded a subcontract for the construction of machinery (fire-fighting) from the Korea Transportation Safety Agency within △△ innovation City to the non-party company on May 6, 2013, ② the defendant notified the termination of the subcontract to the non-party company on April 24, 2013, and the term construction cost incurred until April 24, 2013 is KRW 981,20,000, and the non-party company did not receive KRW 253,426,520 out of the term construction cost above, ③ the non-party company transferred 125,000,000 out of the above construction cost to the plaintiff on October 1, 2012, and notified the transfer of the claim to the defendant on April 24, 2013.

According to the above facts of recognition, the defendant is obligated to pay 125,000,000 won and damages for delay which the plaintiff acquired among the construction price unpaid to the plaintiff, unless there are special circumstances.

2. Judgment on the defendant's assertion

A. The defendant's assertion

The defendant asserts that, as the remaining claim for the construction price against the defendant of the non-party company is KRW 253,426,520, the remainder of the construction price that remains after deducting KRW 29,436,00 from the above construction price, shall be KRW 223,90,520, and ② the notification of the transfer of the non-party company's subcontractor's assignment of the assignment of the assignment of the assignment of the non-party company shall be deducted from the total amount of KRW 141,42,222, and ③ the payment of the remainder of the construction price to the above creditors upon receipt of the notification of the transfer of the non-party company's assignment of the assignment of the assignment to the non-party company, the non-party company's repayment of KRW 82,568

(b) Fact of recognition;

According to the purport of each of the statements and arguments set forth in the evidence Nos. 2 through 4 (including the branch numbers) and the whole purport of the pleadings, the defendant may each recognize the fact that the defendant received a request for direct payment of the transfer of claims and the consideration for subcontract price against the defendant of the non-party company as shown in the following table: ② the notice of transfer to the plaintiff set forth in the table Nos. 1 through 3 reaches KRW 141,42,22; ③ the defendant reached the total sum of the claims set forth in the table Nos. 4 through 6; ③ the defendant reached the notice of transfer to each of the claims set forth in the table Nos. 4 through 6, and the creditor cannot be known at the same date, and thus the creditor cannot be ascertained.

Table 1

On April 25, 2013, 2013, the date of delivery of the claim amount by the creditor classified by the sequence 24,397,074, the non-party 2 (○○○ C&I) requesting direct payment on April 25, 2013, the date of delivery of the claim amount by the creditor classified by the sequence 24,397,074, the non-party 2 (○○○ C&I) requesting direct payment on April 25, 2013.

C. Determination

1) Regarding deduction of warranty bond

The defendant asserts that since the non-party company did not pay the warranty bond to the defendant, the warranty bond of 29,436,000 won (3% of the warranty bond of 981,200,000 won) shall be deducted from the construction price.

According to the evidence evidence Nos. 1, 1 and 5 of the subcontract agreement, Article 11 of the special condition of the subcontract provides that "In the event of a request for the payment of the warranty bond for the construction of this case or a request for the payment of the completion bond exceeding 95% of the total amount, the non-party company shall deposit the warranty bond in cash or submit it in the form of a warranty bond upon the request for the payment of the completion bond for the construction of this case, and otherwise, if the subcontract is cancelled or terminated, the non-party company shall not have any provision concerning the warranty bond. According to the above facts of recognition, the obligation to pay the warranty bond for the non-party company under the above subcontract agreement of this case shall be deemed to have been claimed for the payment of the warranty bond exceeding 95%, or shall be based on the completion of construction. However, there is no ground that

Even if it is assumed that the non-party company is liable to pay the warranty bond to the non-party company, according to the whole purport of the statement and pleading in subparagraph 1, the defendant, on May 6, 2013, notified the non-party company that "the subcontract was terminated between the non-party company and the non-party company as of April 30, 2013, the warranty bond is submitted by the deadline for settlement, and if it is not submitted, the remaining construction cost will be deducted from the warranty bond." The non-party company received the notification around that time, and the non-party company did not submit the warranty bond to the defendant. According to the above facts of recognition, the above warranty bond is not submitted by the non-party company until May 10, 2013 because the non-party company did not submit the warranty bond of this case to the non-party company or the non-party company until May 10, 2013.

Therefore, even if the defendant acquired the security deposit for repairing defects against the transferor after the notification of the assignment of claims in this case, the above security deposit cannot be deducted or offset from the transfer deposit against the plaintiff. Thus, the defendant's above assertion seems to have no reason to see any one.

2) Effect of notification of transfer of each claim set forth in Nos. 2 and 4.

Although it has been recognized since the fact that the assignee can act as the agent for the transferor, in judging whether the power of representation has been legally granted in relation to the notification of the transfer of the transfer, and whether the request for the present name has been complied with in the act of acting as agent, it should be taken into account whether only the notification of the transfer of the transfer made by the transferor has been made with the legitimate authorization of the transferor, in light of all the circumstances, so that the effect that only the notification of the transfer of the transfer does not damage the effect of the requisite for setting up against the transferor. In particular, if the notification of the transfer of the transfer made by the transferee is processed with the valid notification of the transfer of the transfer of the transfer through a doublepass of the application of the proviso of Article 115 of the Civil Act, which provides for exceptions to the principle of the present name and the recognition of the delegation of the right of representation and the application of the proviso of Article 115 of the Civil Act, it should be in conflict with the law. If the notification of the transfer of the transfer of the transfer is made only by the transferor or transferee, the purport of the law.

According to the overall purport of the statement and arguments in the Evidence No. 2-2 and No. 4, the non-party company prepared and delivered a written statement of direct payment to the non-party 2 and the No. 2 and the No. 4, and the No. 2 and the No. 2 were issued to the non-party 2 on April 22, 2013 based on the above written statement of direct payment. On April 24, 2013, the non-party 2 and the No. 2 and the No. 4 issued a written statement of payment to the defendant on April 24, 2013, and each of the above content certification reached the defendant on April 23, 2013.

However, in light of the above legal principles, even if the agreement on the assignment of claims between Nonparty 2 and the non-party company is included in the statement of direct payment in this case, it cannot be concluded that the non-party company granted the authority to notify the assignment of claims to the non-party 2 and the non-party company in the agreement of direct payment in this case. ② The above content certification sent to the non-party 2 and the non-party 2 are merely a document unilaterally prepared by the non-party 2 and the non-party company in the agreement of free payment in this case, and the non-party 2 and the non-party 2 are not entrusted with the notification of the assignment of claims from the non-party company or the fact that the non-party 2 and the company in the agreement of free payment in this case does not entirely include the fact that the non-party 2 and the company in the agreement of free payment in this case are the representative of the non-party company, and there is no evidence to recognize otherwise.

Therefore, there is no opposing power because notification of transfer of each claim Nos. 2 and 4 does not meet the valid conditions of notification of transfer of claim. Thus, the defendant cannot claim that the notification date is earlier than the plaintiff or is the same priority assignment of claim on the ground of the above assignment of claim. Therefore, the defendant's above assertion is without merit.

(iii) the validity of the deposit for performance.

In order for a deposit to be effective, the payment for the full amount of the obligation must be provided and the deposit for the full amount of the obligation shall be made, and the deposit for the part which is not the full amount of the obligation shall not take effect as to the part of the deposit, unless the creditor accepts it (see Supreme Court Decision 98Da17046, Oct. 13, 1998, etc.). Thus, the defendant's deposit amount less than the amount of the claim of the plaintiff is less than the amount of the claim of the plaintiff, and there is no evidence that the plaintiff accepted it, and the defendant's above assertion

4) The heating relationship where the notice of assignment of claims has been delivered simultaneously.

Although the defendant asserts that the notice of the assignment of claims in this case and the notice of the assignment of claims by Nonparty 1 have arrived at the same time, it is not sufficient to recognize it only by the statement of Nonparty 4, and there is no other evidence to acknowledge it.

Even if Nonparty 1’s notification of the assignment of claims has arrived at the same time, if several notifications of the assignment of claims are served at the same time on the garnishee, and there is no compromise among them, the assignee of the claims shall be deemed to have full opposing power against the garnishee. Therefore, the Plaintiff may demand the payment of the total amount of the transfer of claims and receive the payment lawfully. Thus, the Plaintiff may demand the Defendant to demand the payment of the total amount of the transfer of claims.

5) Sub-decisions

Therefore, the non-party company’s claim for construction cost against the defendant is KRW 253,426,520, and when the non-party company’s claim is deducted from the above claim amount the sum of KRW 114,397,074 (=24,397,074 won + 90,000,000), the non-party company’s claim against the defendant remains 139,029,446 (=253,426,520 won - 114,397,074 won).

3. Conclusion

Therefore, the defendant is obligated to pay the plaintiff the above amount of KRW 125,00,000 and the damages for delay calculated at the rate of 20% per annum from June 6, 2013 to the date of full payment, which is clear on the record that the delivery date of a copy of the complaint of this case is the day following the delivery date of the copy of the complaint of this case. Thus, the plaintiff's claim of this case of this case is justified and it is so decided as per Disposition.

Judges Kim Dong-jin (Presiding Judge)

(1) The Defendant also claims the time when the claim for the security deposit for repairing defects occurred from the preparatory document dated December 10, 2013 as at the time of termination of the contract.