下都給法上 直接請求權에 관한 硏究

Art. 14 of the Korean Fair Subcontract Transactions Act prescribes that the subcontractor can claim the orignal undertaker to pay subcontract amount directly to the subcontractor, if the contractor is under the insolvency procedure or there is an agreement upon the direct payment among the undertaker, the contractor and the subcontractor. This kind of legal figure, which can be called “action directe”, in itself is originated in France, and furthermore, art. 14 KFSTA is very similar to the chapter 3 of the French Subcontract Act, although the chronicle of the prescription suggests there is no relation between both codes. So, a study on the french doctrine of “action directe” would be fruitful and inspiring for the interpretation of art. 14 of KFSTA. The main point of this study is as follows : First, as “action directe” is derived from the contract between the original undertaker and the contractor, the original undertaker can submit the defences which the contractor could maintain against the subcontractor, including the defence that the contractor has assigned his own claim of contract amount to someone else. As “action directe” is the independent right of subcontractor, however, it is immune to the defences which are acquired after the notice of direct claim to the original undertaker is made. Second, once the notice has been made, the claim of contractor is ipso iure transferred to the subcontractor, but subcontractor's own claim against the contractor doesn't extinguish until the direct payment is made. Third, even if the insolvency procedure opened before the notice is made, the subcontractor has “action directe.” On the contrary, the subcontractor doesn't have “action direct” when the arrest of the contractor's claim precedes the notice.