수급사업자의 직접지급청구권과 원사업자의 채권자에 의한 공사대금채권의 가압류

Abstract

Article 14 of the Fair Transactions in Subcontracting Act stipulates a claim for direct payment that allows the subcontractor to directly demand the subcontract consideration to the client (person placing an order) if a certain ground occurs, in order to prevent the subcontractor from being exposed to danger of a chain of defaults on checks due to the contractor (prime contractor)’s delay in payment of the subcontract consideration. According to judicial precedents, however, if there is a provisional attachment, etc. on the contractor's construction consideration claim against the client, the claim of which execution has already been preserved is not extinguished, even though a ground for direct payment occurs after that. Consequently, if there is a competition between a provisional attachment, etc. on construction consideration claim by the contractor's creditor and the subcontractor's claim for direct payment, the one that first reaches the client, among a notice of attachment determination from the court, etc. and the subcontractor’s request for payment, has validity, which is inadequate in protecting the subcontractor. Paragraph 4, Article 14 of the Fair Transactions in Subcontracting Act presents a provision which is intended to protect the client: when the client pays the subcontract consideration directly to the subcontractor as the relevant subcontractor has requested direct payment, he/she shall pay it minus the subcontract consideration that has already been paid to the contractor. However, if the subcontractor who has not received full repayment of the subcontract consideration exercises a lien on completed subject matters, the client is in danger of duplicate payment, even though he/she has entirely discharged his/her contract consideration obligation on the contractor. Therefore, it is desirable to establish a provision under which when the client discharges the obligation of subcontract consideration payment within the range of the contractor's contract consideration claim, the subcontractor cannot exercise a lien on the client, along with a provision under which the contractor's contract consideration claim against the client cannot be attached or transferred legislatively within the range of the subcontractor's subcontract consideration claim.