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서울중앙지방법원 2013. 1. 10. 선고 2012가합520406 판결

[추심금][미간행]

Plaintiff

Industrial Bank of Korea (Law Firm Barun, Attorneys Park Jong-sik et al., Counsel for the plaintiff-appellant)

Defendant

Incheon Urban Corporation and one other (Law Firm Western, Attorneys Choi Jong-ap et al., Counsel for the plaintiff-appellant)

Conclusion of Pleadings

December 13, 2012

Text

1. The plaintiff's primary and conjunctive claims are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Purport of claim

1. The primary purport of the claim

The defendant Incheon Urban Corporation shall deliver to the plaintiff a claim (securities) equivalent to KRW 344,00,000 out of the adjudication compensation for the non-party 1 (resident registration number omitted).

2. Preliminary purport of claim

Defendant Republic of Korea shall pay to the Plaintiff 34,00,000 won with 5% interest per annum from February 27, 2012 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

Reasons

1. Facts of recognition;

A. With respect to the land for factory 1,226 square meters, Seo-gu, Incheon ( Address 1 omitted) owned by Nonparty 1 and Nonparty 2 (ownership of shares 1/2), the Plaintiff received the registration of establishment of a neighboring mortgage over three times, as shown in the attached Table ’(hereinafter the "each of the instant collective security interests").

The debt amount of KRW 450,000,000 on March 24, 2006, the mortgagee of the right to collateral security, who was the debtor of the maximum debt amount on March 24, 2006, the debt amount of KRW 300,000 on November 22, 2006, the debt amount of KRW 300,000 on September 20, 200, the debt amount of KRW 300,000 on September 8, 2008, the debt amount of KRW 450,00

B. On January 6, 2010, the instant land was incorporated into the Incheon Inspection District Housing Site Development Project by the Ministry of Land, Transport and Maritime Affairs Notice No. 2009-1307, and on June 3, 2010, the Plaintiff was served on the Defendant Corporation on June 7, 2010, on the basis of the subrogation right of each of the instant collective security rights, with respect to the instant land owned by Nonparty 1 against the Defendant Incheon Urban Corporation (hereinafter “Defendant Corporation”), which is the implementer of the Incheon Inspection District Housing Site Development Project, for the amount of KRW 950,00,000 among the claims for the expropriation compensation regarding the instant land. The instant seizure and collection order was served on the Defendant Corporation on June 7, 2010.

C. On April 2010, Defendant Corporation requested Nonparty 1 and Nonparty 2 to consult on the compensation of losses for the instant land, but failed to reach an agreement, filed an application for adjudication to expropriate the instant land with the Central Land Expropriation Committee. On August 12, 2011, the Central Land Expropriation Committee decided to expropriate the instant land as KRW 891,669,80 ( Nonparty 1: 445,834,900, and Nonparty 2: 445,834,900) for compensation for expropriation.

around August 23, 2011, the Defendant Corporation notified the Plaintiff that (i) the procedures for preserving claims, such as the seizure of adjudication compensation, are withdrawn by September 30, 201, which is the scheduled date of the deposit of adjudication compensation; and (ii) around September 22, 2011, the amount exceeding KRW 100,000 out of the adjudication compensation for expropriation should be deposited as bonds (securities). The portion deposited as bonds (securities) cannot be deposited for execution because the seizure of monetary claim becomes effective, and thus, it is expected to deposit with the Incheon District Court as of September 30, 2011.

D. On September 30, 201, the Defendant Corporation deposited KRW 101,834,90 out of KRW 445,834,90 of the adjudication compensation with Nonparty 1, as the Incheon District Court’s money in KRW 8515. However, as to securities (land compensation bonds and land housing bonds; hereinafter “instant securities”) equivalent to the remaining KRW 344,00,000, the Defendant Corporation deposited the repayment deposit with Nonparty 1 (hereinafter “instant repayment deposit”) in accordance with Article 40(2)1 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects pursuant to Article 40(2)1 of the same Act.

E. On February 24, 2012, the Plaintiff received a seizure order regarding the money up to KRW 516,306,641, out of the right to claim the delivery of the instant securities deposited by Nonparty 1 with the Seoul Southern District Court 2012TTT 3483, based on the subrogation right of each of the instant collective security rights (hereinafter “instant seizure order”).

F. On February 24, 2012, the Plaintiff sent the instant attachment order by facsimile to the deposit officer of the Incheon District Court, and requested Nonparty 1 not to deliver the instant securities.

G. On February 27, 2012, Nonparty 1 applied for the withdrawal of deposited goods upon the instant reimbursement deposit, and on the same day, Nonparty 3 was delivered the instant securities by the deposit officer of the Incheon District Court.

H. The decision of seizure No. 2 of this case was served on February 29, 2012 on Defendant Republic of Korea (Seoul District Court).

[Ground of recognition] The fact that there is no dispute, Gap 1 through 12, Eul 2, Eul 1, Eul 1, the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

Since the seizure and collection order of this case also has its effect on the right to request the delivery of the securities of this case against the Defendant Corporation by Nonparty 1, the Defendant Corporation’s deposit of the securities of this case with Nonparty 1 as the principal deposit cannot set up against the Plaintiff with it contrary to the above seizure and collection order. In addition, there is no ground for repayment deposit, such as Nonparty 1’s refusal to receive, etc., and the above repayment deposit is unlawful.

Therefore, the Defendant Corporation is obligated to deliver the instant securities to the Plaintiff based on the instant seizure and collection order.

B. Determination

In cases where it is possible to pay claims as compensation for land expropriation, and public project operators do not choose whether cash or bonds should be paid, seizure and assignment order for compensation claims is subject to compensation claims arising under the condition that public project operators choose to pay compensation in cash in the future (see Supreme Court Decision 2004Da24168, Aug. 20, 2004). In addition, this legal principle also applies to a collection order, which is a compulsory execution method for monetary claims.

Therefore, among Nonparty 1’s claim for compensation for losses to Defendant Corporation, which is the claim subject to the seizure and collection order of this case, the part concerning the claim for seizure amounting to KRW 344,00,000 remaining after the Defendant Corporation decided to pay in cash, excluding the part regarding the claim for compensation for losses to Defendant Corporation, which is the claim subject to the seizure and collection order of this case, shall be determined to pay in securities and confirmed that the above conditions of suspension are not fulfilled, and thus, the substantive effect

In addition, the seizure order of this case is only issued against the claim for the expropriation compensation, which is a monetary claim, and it is not a seizure order against the securities of this case, which is deemed to be corporeal movables under the Civil Execution Act, and thus, the payment deposit of this case on the securities of this case cannot be deemed to be contrary to the seizure order of this case. Even if there is no ground for the payment deposit such as the rejection of receipt, etc., the non-party 1 paid the securities of this case without reservation, and thus,

Therefore, the plaintiff's primary claim claiming the delivery of the securities of this case to the defendant Corporation based on the collection order of this case is without merit.

3. Judgment on the conjunctive claim

A. The plaintiff's assertion

The Plaintiff sent the attachment order of this case to the depository of the Incheon District Court by facsimile and requested the non-party 1 not to deliver the securities of this case. However, the above depository was ordered to deliver the securities of this case to the non-party 1, and thereby the Plaintiff suffered losses not to recover the amount equivalent to the face value of the above securities.

Therefore, Defendant Republic of Korea is obligated to compensate the Plaintiff for KRW 344,00,000, equivalent to the face value of the securities of this case pursuant to Article 2 of the State Compensation Act.

B. Determination

On February 24, 2012 regarding the right to request the delivery of the instant securities against Nonparty 1’s Defendant Corporation, the fact that the attachment order of this case was issued on February 24, 2012, and that the Plaintiff requested Nonparty 1 not to deliver the instant securities while sending the attachment order of this case to the Incheon District Court depository by facsimile on the same day.

However, it cannot be deemed that sending the attachment decision directly to a third party obligor by facsimile is a lawful delivery, and the defendant's deposit officer of the Republic of Korea who is the third party obligor cannot refuse the request for withdrawal of the deposited person with the decision of seizure delivered illegally as above.

Therefore, it is legitimate for Defendant Republic of Korea to deliver the instant securities to Nonparty 1, the depositee of the instant repayment deposit, on February 27, 2012, before February 29, 2012, which was duly delivered by Defendant Republic of Korea on February 29, 2012, and there is no evidence to acknowledge that the delivery of the instant securities by the depositer violates the law.

Therefore, the plaintiff's conjunctive claim is without merit.

4. Conclusion

Thus, the plaintiff's primary and conjunctive claims are dismissed as it is without merit.

Judges Kim Sung-dae (Presiding Judge)