• The Journal of the Korea Contents Association
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• v.13 no.5
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• pp.223-233
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• 2013

As the injunctive effect on the real estate gets announced in public once the seizure register gets exercised in terms of auction and the action of disposal by the real estate owner afterwards becomes nullified in the relationship with a seizure creditor or a successful bidder, the register performed by the cause of disposal action that cannot confront with the seizure or provisional seizure, becomes cancelled in virtue of a registration officer's office. Accordingly, in case of being a singular successor who relatively loses property in a relationship toward the successful bidder due to the injunctive effect of provisional seizure, the identity with building owner and land owner as the precondition of establishing legal superficies according to the custom must be decided based on the time of provisional seizure. The Supreme Court Decision 2010Da52140 delivered on October 18, 2012 has great significance from the fact that it has settled inconsistency in existing precedent cases with such purpose.

• 월간 기계설비
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• no.9 s.194
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• pp.54-55
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• 2006

공사대금에 대한 압류나 가압류가 이루어진 경우 하도급대금 직접 지급 가능 여부와 관련한 논란에 대해 사업부가 가능하다는 판결을 내려 주목된다. 전주지방 법원 제2민사부 (재판장 조현욱 판사)는 "기성금의 청구일자보다 제3 채권자의 압류나 가압류일 자가 앞선다고 하더라도 직접지급합의서가 제3채권자의 압류나 가압류보다 먼저 작성됐다면 발주자는 하도급대금을 수급사업자에게 직접 지급해야 한다"고 판결했다. 3개의 전문건설업체가 전주국도유지건설사무소를 상대로 '하도급대금을 직접 지급해 달라'고 청구한 소송에서 재판부는 "발주자가 하도급대금을 수급사업자에게 직접 지급하기로 발주자,원사업자,수급사업자 간에 합의한 경우에는 '그 합의한 때' 발주자의 원사업자에 대한 대금지급채무는 소멸된다'며 이같이 판결했다. 이번 판결이 하도급거래공정화에 관한 법률 제14조 제 2항에서 규정하고 있는 '발주자의 원사업자에 대한 대금지급채무의 소멸시기'가 '수급사업자가 하도급대금의 직접 지급을 요청한 때'가 아닌 '발주자,원사업자,수급사업자 간에 직불을 합의한 때'임을 분명히 한 것이어서 하도급대금 직불에 미온적이었던 발주기관들의 관행을 개선시키는 계기가 될 것으로 예상된다.

• Electric Engineers Magazine
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• s.301
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• pp.48-48
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• 2007

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.261-301
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• 2016

Recently the abusive calls on on-demand bonds have been a critical issue among many engineering and construction companies in Korea. On-demand bond is referred to as an independent guarantee in the sense that the guarantee is independent from its underlying contract although it was issued based on such underlying contract. For this reason, the issuing bank is not required to and/or entitled to look into whether there really is a breach of underlying contract in relation to the call on demand-bonds. Due to this kind of principle of independence, the applicant has to run the risk of the on demand bond being called by the beneficiary without due grounds. Only where the call proves to be fraudulent or abusive in a very clear way, the issuing bank would not be obligated to pay the bond proceeds for the call on on-demand bonds. In order to prevent the issuing bank from paying the proceeds under the on-demand bond, the applicant usually files with its competent court an application for injunction prohibiting the beneficiary from calling against the issuing bank. However, it is in practice difficult for the applicant to prove the beneficiary's call on the bond to be fraudulent since the courts in almost all the jurisdictions of advanced countries require very strict and objective evidences such as the documents which were signed by the owner (beneficiary) or any other third party like the engineer. There is another way of preventing the beneficiary from calling on the bond, which is often utilized especially in the United Kingdom or Western European countries such as Germany. Based upon the underlying contract, the contractor which is at the same time the applicant of on-demand bond requests the court to order the owner (the beneficiary) not to call on the bond. In this case, there apparently seems to be no reason why the court should apply the strict fraud rule to determine whether to grant an injunction in that the underlying legal relationship was created based on a construction contract rather than a bond. However, in most jurisdictions except for United Kingdom and Singapore, the court also applies the strict fraud rule on the ground that the parties promised to make the on-demand bond issued under the construction contract. This kind of injunction is highly unlikely to be utilized on the international level because it is very difficult in normal situations to establish the international jurisdiction towards the beneficiary which will be usually located outside the jurisdiction of the relevant court. This kind of injunction ordering the owner not to call on the bond can be rendered by the arbitrator as well even though the arbitrator has no coercive power for the owner to follow it. Normally there would be no arbitral tribunal existing at the time of the bond being called. In this case, the emergency arbitrator which most of the international arbitration rules such as ICC, LCIA and SIAC, etc. adopt can be utilized. Finally, the contractor can block the issuing bank from paying the bond proceeds by way of a provisional attachment in case where it also has rights to claim some unpaid interim payments or damages. This is the preservative measure under civil law system, which the lawyers from common law system are not familiar with. As explained in this article, it is very difficult to block the issuing bank from paying in response to the bond call by the beneficiary even if the call has no valid ground under the underlying construction contract. Therefore, it is necessary for the applicants who are normally engineering and construction companies to be prudent to make on-demand bonds issued. They need to take into account the creditability of the project owner as well as trustworthiness of the judiciary system of the country where the owner is domiciled.