종합건설면허대여에 의한 하도급판례연구

In case that a subcontractor has a direct claim for payment to a housebuilder, it is important whether a subcontractor has the priority to an execution creditor of a contractor or not in a general subcontract. By the way, it is important to ascertain who is a contracting party of a contract in case of a subcontract used by a license rental. The High Court and the Supreme Court of Korea have accepted and applied the theory of a interpretation on a legal action in ascertaining a contracting party in case of a subcontract used by a license rental. However, the conclusions are different each other. In my opinion the theory of a interpretation on a legal action has a flexible and wide range of applications. I’d like to agree on the theory of a interpretation on a legal action in spite of it’s legal instability. In case of a subcontract used by a license rental, the contracting party is not a performer of a deed but the nominal person according to the theory of a interpretation on a legal action. A juristic act between the contracting parties of a subcontract used by a license rental is generally effective according to a so-called ‘a puppet theory’. I discussed a direct claim for payment of a subcontractor to a housebuilder. The High Court of Korea said that an order of attachment by a contractor’s creditor is not effective, because the parties agree that a claim for the cost of construction belongs only to a subcontractor. However, the Supreme Court of Korea says that it depends on the intention of the parties whether the subcontractor has the priority to an execution creditor of a contractor or not. I agree to the precedent of the Supreme Court of Korea, considering the article 14(1) and 14(2) of the Fair Transactions in Subcontract Act.