하도급거래 공정화에 관한 법률 상 하도급대금 지급의무 위반에 관한 소고

The Fair Transactions in Subcontracting Act (“FTSA”) requires the principal contractor to pay subcontract consideration to the subcontractors within a period designated by the FTSA, and it provides for various administrative sanctions upon violation of Article 13 of the FTSA (“Article 13”) and other relevant provisions of the FTSA. Since Article 13 does not expressly provide for exceptions to the principal contractor’s non-payment or delayed payment, there have been court decisions which took the position that the Korea Fair Trade Commission(“KFTC”), in applying Article 13, has only to confirm the fact of non-payment of subcontract consideration but does not need to review justifiable reasons for such non-payment presented by the principal contractor, and the KFTC and some commentators have supported the stance of such court decisions. However, considering the purpose of the FTSA and its legislative background, it is difficult to justify such interpretation of Article 13 that the principal contractor is not allowed to present valid legal defenses based upon its civil law rights. Conversely, Article 13 should be interpreted to require the KFTC to consider the principal contractor’s legal arguments based upon its civil law rights. Further such interpretation of Article 13 should be applied not only to the context of the KFTC’s payment order but also to the context of other corrective orders only confirming the violation of Article 13 itself. In this regard, the principal contractor should be allowed to present various justifiable reasons including the factors regarding non-accrual of the subcontractor’s receivables like non-fulfillment of the subcontracted work, settlement or extinguishment of the subcontractor’s receivables like full payment, set-off etc, and other refusal rights to payment like defense of simultaneous fulfillment among others. Lastly, it is recommended that Article 13 should be amended to clarify legal uncertainties arising from the lack of express language allowing justifiable exceptions to the non-payment of subcontract consideration.