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(영문) 대구고법 1999. 5. 14. 선고 98나3390 판결:상고

[청구이의 ][하집1999-1, 26]

Main Issues

[1] In a case where a lawsuit claiming the amount of money is instituted by claiming false facts, and a judgment in favor of the other party is rendered by a constructive confession in a way that obstructs the service of documents concerning the lawsuit against the other party, whether a tort is established in a case where the judgment becomes final and conclusive by obtaining an order of seizure and assignment

[2] Where compulsory execution based on the final and conclusive judgment is unlawful, whether a claim for damages based on a tort is against the res judicata effect of the final and conclusive judgment (negative)

[3] Where the execution of a final and conclusive judgment itself becomes a tort, whether the filing of an objection to a claim conflicts with the res judicata effect (negative)

Summary of Judgment

[1] In a case where a party to a lawsuit, who was aware of the existence of a claim, filed a lawsuit claiming acquisition of the claim with a false assertion that the claim was transferred, and subsequently rendered a favorable judgment in accordance with a constructive confession by interfering with the delivery of documents related to the lawsuit, and the judgment became final and conclusive upon receipt of an order of seizure and assignment of the claim, it is against justice to acquire a final judgment different from the substantive legal relationship and compulsory execution based on the judgment in an unlawful manner, such as deceiving the court by false assertion, interfering with the other party's involvement in the lawsuit with the intent to impair the other party's rights, and thus constitutes a tort of abuse of rights.

[2] Even if a judgment became final and conclusive and conclusive, the execution of the final and conclusive judgment is unlawful, and damages arising therefrom are incurred, and thus, a claim for damages arising from a tort does not conflict with the res judicata of the judgment.

[3] A lawsuit of demurrer is a legal remedy for the prevention of unfair compulsory execution, and where a claim established by a judgment is altered or extinguished after the closing of argument in the judgment, or where the enforcement of a judgment itself becomes a tort, it does not exclude the executory power based on the final judgment, but does not exclude the res judicata itself arising from the final judgment.

[Reference Provisions]

[1] Articles 2 and 750 of the Civil Act, Article 226 of the Civil Procedure Act / [2] Article 750 of the Civil Act, Article 202 of the Civil Procedure Act / [3] Article 750 of the Civil Act, Articles 202 and 505 of the Civil Procedure Act

Reference Cases

[1] Supreme Court Decision 90Da6576 delivered on February 26, 1991 (Gong1991, 1070), Supreme Court Decision 92Da18627 delivered on December 11, 1992 (Gong1993Sang, 447), Supreme Court Decision 95Da21808 delivered on December 5, 1995 (Gong1996Sang, 197), Supreme Court Decision 84Meu572 delivered on July 24, 1984 (Gong1984, 1479), Supreme Court Decision 96Da4862 delivered on September 12, 1997 (Gong197Ha, 3073)

Plaintiff, Appellant

[Defendant-Appellee] The Head of Si/Gun/Gu Office (Attorney Park Jong-hee et al., Counsel for defendant-appellee)

Defendant, appellant and appellant

Defendant Company (Attorney Choi Jong-ho et al., Counsel for the defendant-appellant)

Judgment of the lower court

Daegu District Court Decision 97Gahap5682 delivered on April 30, 1998

Text

1. The defendant's appeal is dismissed.

2. The decision of the court below was modified due to the plaintiffs' lawsuit acceptance as follows.

The defendant shall pay to the plaintiff Choi-hee the amount of 113,386,739 won for the plaintiff, the amount of 75,591,159 won for the remaining plaintiffs, and the amount of 5 percent per annum for each of them from April 18, 1997 to April 16, 1998, and the amount of 25 percent per annum for each of them from the following day to the full payment date.

3. The costs of appeal are assessed against the defendant.

Purport of claim

1. Selectively, the defendant shall pay to the plaintiff Choi-hee the amount of KRW 113,386,739, the amount of KRW 75,591,159 for each of the remaining plaintiffs, and the amount of KRW 75,591,159 for each of them from April 18, 1997 to the service date of a copy of the application form for preliminary claim and additional cause, and the amount of money at the rate of KRW 25,00 per annum for each of them from the following day to the full payment date. The defendant shall transfer the claims listed in the attached list to the plaintiffs, and notify the non-party to the Republic of Korea (Tgu Tax Office) that he transferred the above claims.

2. The decision of the Daegu District Court 94 Gohap1053 against the defendant's net wheels shall not be permitted to enforce compulsory execution on the part exceeding 566,93,69 won in excess of 566,93,69 won.

Purport of appeal

The judgment below is revoked. The plaintiffs' claim is dismissed.

Reasons

1. Facts of recognition;

The following facts are not disputed between the parties, or evidence 1 through 5, 7, 11, 12, 17, Gap, 6, 8, 10, 13, 15, 18-1, 2, Gap evidence 9-1, 2, 3, 19-1 through 18, Gap evidence 20-1 through 28, Gap evidence 21 through 29-1, 30, Eul evidence 30, 31, 32, Eul evidence 33-1 through 5, Gap evidence 34, 35, 37-1, 36-2, 1-2, 3-1, 2-1, 3-1, 3-1, 2-2, 3-1, 2-1, 4, 8-1, 6-1, 7-2 of the witness testimony, and 3-2-1, 3-1, 6-1, 7-1, 9-1, 7

A. On March 29, 1993, the deceased Lee Jong-chul concluded a contract between the non-party 1, the representative director of the non-party 1, who was the non-party 1, who was the non-party 1, and the non-party 2,160,000 won for the construction cost of the non-party 1,40,000 won for the construction cost of the non-party 1,40,000 won for the non-party 1,60,000 won for the non-party 1,40 won for the non-party 1,60,000 won for the non-party 1,60,000 won for the non-party 1,93, and the non-party 2,50 won for the non-party 1,930,000 won for the non-party 1,50 won for the non-party 1,000 won for the non-party 1,000 won for the non-party 1.

B. However, since the non-party 1, the representative director of the defendant company, was a director of the non-party company from January 16, 1993 and was appointed as the representative director of the non-party company on December 30, 1993, the corporation of this case knew that Park Ha had lent the name of the non-party company and directly performed the work, and that the obligation to pay the deceased's gambling was almost settled, and although the non-party company did not assume the obligation to the defendant company, the company under the contract of this case was in the name of the non-party company. Thus, although the non-party company did not assume the obligation to the non-party company, the non-party company has a claim for the construction price of 890,000,000 won equivalent to the original amount of the corporation of this case against the deceased, the non-party company prepared a false claim transfer and takeover contract to the non-party company as the right to preserve the above claim, and received a decision from the court of Taegu District Court on the above provisional seizure 2009,400.

C. In addition, on May 26 of the same year, the above non-party 1 filed a claim suit against the deceased on May 26, 199 on the above court 94da1053 in the name of the defendant company. According to the records of each service report (A evidence 9-1, 2) of the above lawsuit, the deceased was served on May 31, 1994, and the notice of the pronouncement date on June 30 of the same year. However, although the deceased's design affixed on the above service report was affixed with the seal, the signature and seal of the person who received the delivery report of the complaint and response guide was "not 90 son," and the above judgment was delivered to the non-party 4 of this case on the 90th anniversary of the above 90th son's 90th son's son's 90th son's son's son's son's son's son's son's son's son, the above 9090th son's son.

D. In addition, Nonparty 1, a creditor of the Defendant Company, filed a complaint against the Defendant Company on December 2, 199 on the part of the Defendant Company against KRW 323,00,000,00,000 among KRW 323,5903,5904, the above court applied for the seizure and collection order, and the above court received the seizure and collection order from the above court on November 10, 1995. The above decision was served on the Deceased on the part of the Deceased, and the deceased was served on the time of the above decision, and the deceased, who became aware of the final decision, filed a complaint against the above Nonparty 1 on December 25, 1996. During the investigation process, the deceased had the Plaintiff Leecheon-cheon, who was his own child, file an application for delivery of the original copy of the judgment on behalf of the Deceased on January 25, 1996, but the above judgment became final and conclusive by the court on March 19, 196.

E. After that, on February 17, 1997, the Defendant Company received an order for the attachment and assignment of claims and assignment of claims to the provisional attachment from the above court 97tagi1195 and 1196 for the amount of KRW 56,63,69, excluding the above amount of KRW 323,06,30,00, the amount of 890,000, the claim for the return of the public auction proceeds against the deceased's country, which is the claim listed in the attached list, excluding the above amount of KRW 323,06,30,000, which had already been attached. The decision became final and conclusive on April 18, 1997.

F. On the other hand, the deceased died on October 13, 1998, and the plaintiff Choi-hee, the wife of the deceased, jointly inherited the deceased's property at the share of 15 shares and 2/15 shares, respectively.

2. Determination:

According to the above facts, although the defendant knew that the non-party company was merely the nominal lender of the contract of this case and did not have any claim for the construction cost against the deceased, he had received the claim for the construction cost of KRW 890,00,000 from the non-party company, and filed a lawsuit for the claim against the deceased for the transfer of the claim against the deceased by alleging false facts, and was sentenced to the judgment in favor of the deceased in a manner that obstructs the service of documents in the lawsuit against the deceased. Based on such judgment, the defendant is aware of the fact that he received all the claim in the attached list against the deceased against the State. As such, it is against the justice that acquiring a final judgment different from the legal relationship of the substance by fraudulent means such as deceiving the court by false assertion, interfering with the other party's involvement in the lawsuit due to the intention to prejudice the other party's rights, and thus, it constitutes an abuse of rights and constitutes an unlawful act, and thus, the deceased shall be held liable for damages to the above part of the claim for the transfer of the property by the plaintiff 36.

3. Judgment on the defendant's assertion

A. The defendant asserts that the above compulsory execution is in conflict with the res judicata effect of each of the above final judgment as long as the defendant filed a lawsuit against the deceased for the claim for transfer money and became final and conclusive after receiving a favorable judgment. Since the lawsuit filed by the deceased for a retrial against the above claim for transfer money is dismissed and final and conclusive, the plaintiff's claim in this case

(1) Therefore, first of all, we examine whether the part of the plaintiffs' claim for damages caused by a tort conflicts with the res judicata effect of each of the above final and conclusive judgments, and even if the final and conclusive judgment became final and conclusive, the execution of the final and conclusive judgment is unlawful, and it does not conflict with the res judicata effect of the judgment to claim damages caused by a tort. Thus, the defendant's above assertion is without merit.

(2) Furthermore, with respect to whether the part of the plaintiffs' objection in the claim in this case conflicts with the res judicata of each of the above final judgment, a claim objection suit is a method of remedy for the prevention of unjust compulsory execution, and where the claim established by the judgment is changed, extinguished after the closing of argument in the judgment, or where execution of the judgment itself becomes a tort, it is not to exclude the executory power based on the final judgment, but to exclude the res judicata itself arising from the final judgment. Therefore, the defendant's argument is without merit.

B. In addition, the defendant argues that the title trust relationship between the truster and the trustee is merely an internal relationship, and that the non-party company, the title holder of which is the creditor of the contract of this case is the party to the contract. However, if the contract was entered into in another person's name, the effect of the contract should be attributed to the party to the contract, and it does not vary depending on internal and external relations. Thus, the defendant's argument is without merit.

4. Conclusion

Therefore, the defendant shall compensate for damages caused by the tort, and 113,386,739 won (56,93,69 x 3/15) for the plaintiff Choi-hee who is the wife of the deceased, and 75,591,159 won (56,93,699 x 2/15) for the remaining plaintiffs who are children, respectively, and the above seizure and assignment order as to each of them, from April 18, 1997 to April 16, 1998, the delivery date of a copy of the application for preliminary claim and additional cause, 5% per annum under the Civil Act, and 25% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings until the full payment date from the next day to the date of the judgment below, and it is justified in the judgment below to dismiss the plaintiffs' claim for damages due to the above modification of 56,93,699 won, and there is no reason to dismiss it as the judgment of the court below.

Judges Kim Jin-jin (Presiding Judge)