하도급대금의 직접지급 청구와 관련된 채권배당절차 실무상 쟁점

In order to protect subcontractors who are economically weak in the subcontracting relationship, Fair Transactions in Subcontracting Act and Framework Act on the Construction Industry allow direct subcontracting of subcontracting proceeds to subcontractors. In case that the subcontractor 's subcontracting bill and the garnishment by the creditor of the immediately proceeding contractor compete with each other and the contractor makes the mixed deposit, various issues arise in the practice of dividend payout. In the case where the construction bonds of the immediately proceeding contractor are held by the advance garnishment, that is, in the relation between the preceding garnishment and the direct claim and the subsequent garnishment, the direct claim is not affected by prohibition disposal of advance garnishment. Since direct claims of the subcontractor are incompatible with the construction company's receivables, direct claims can not be made within the scope of the execution, and the latter can participate in the dividend. The preceding garnishment which interferes with the generation of the direct claim shall be construed as including provisional attachment whose subcontractor has the right to pay the subcontract, and the subcontractor may withdraw provisional attachment and exercise the claim directly, before the contractor deposits. In the case of direct claims in the Framework Act on the Construction Industry, because the contract bonds of the immediately proceeding contractor and the direct claim of the subcontractor can coexist in the regulation, the garnishment of the construction bond can be contested with the direct claim after the direct claim is established, In this case, considering the intention of revision of the legislator, it is reasonable that the direct claim of the subcontractor takes precedence, like Fair Transactions in Subcontracting Act. Often in the subcontracting relationship, the immediately proceeding contractor may be in bankruptcy or regeneration due to the financial weakness. In particular, if there is a precedent foreclosure prior to the direct claim, and the immediately proceeding contractor is bankrupt, if the preceding garnishment is brought to an end due to the bankruptcy sentence, a direct claim is made and the bankruptcy foundation is damaged, so in this case it is reasonable to interpret that the preceding garnishment is not invalid. In view of the legislation, it is necessary to revise the construction bonds of the immediately proceeding contractor to be invalidated if the direct claim to the subcontractor occurs under the Framework Act on the Construction Industry to protect the subcontractor and enhance the stability of the legal relationship.