[전부금][공2010상,1108]
[1] The standard for determining whether an assignment order becomes null and void due to competition of seizure in a case where an assignment order exists in a situation where a seizure of future non-determined claim overlaps (=the amount of seized claim under a contract delivered to the third debtor at the time when the assignment order was delivered to the third debtor) and the method for calculating the amount of seized claim
[2] The case holding that where a trust real estate is sold under a real estate security trust agreement, whether an assignment order for a dividend delivery claim held by a truster against a trust company becomes invalid due to the competition of seizure should be determined based on the amount of the dividend delivery claim anticipated at the time of delivery of an assignment order
[1] In a case where an assignment order is issued under the overlapping condition of a future non-determined claim, whether the assignment order becomes null and void due to the competition of the seizure should not be determined on the basis of the amount of the claim subject to attachment finally finalized, but on the basis of the amount of the claim subject to attachment under the contract at the time when the assignment order was served to the third debtor. Since allowing an assignment order for the future non-determined claim is expected to be incurred in the near future, permitting an assignment order for the whole of the claim subject to attachment should be determined on the basis of the amount of the claim subject to attachment under the contract at the time when the assignment order was served to the third debtor, if it is impossible to identify the claim amount because the claim amount is not determined on the basis of the contract which is the cause of the claim subject to attachment at the time of the delivery of the assignment order, it is reasonable to view
[2] The case holding that where real estate is sold under a real estate security trust contract, whether an assignment order for dividends issued by a truster to a trust company becomes invalid due to the competition of seizure should be determined on the basis of the amount obtained by deducting dividends calculated at the time of sale of real estate and estimated conversion fees from the amount of revenues until the time of the delivery of an assignment order under the premise that the sale of real estate and dividends will proceed from the amount equivalent to the market price of real estate
[1] Articles 229, 231, and 235 of the Civil Execution Act / [2] Articles 229, 231, and 235 of the Civil Execution Act
[1] Supreme Court Decision 98Da15439 delivered on August 21, 1998 (Gong1998Ha, 2292)
Plaintiff (Law Firm Yang Jae, Attorneys Choi Byung-soo et al., Counsel for the plaintiff-appellant)
Korea Land Trust Co., Ltd. (Law Firm Round, Attorneys Kim Jong-jin et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2009Na7597 decided October 15, 2009
The judgment below is reversed, and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
1. The judgment of the court below
The court below held on January 8, 200 that the non-party 1 and the non-party 2 were 13,00,000 won loaned to the non-party 1 and the non-party 1 and the non-party 2 were assigned to the non-party 4 non-party 1 and the non-party 1 and the non-party 3 were assigned to the non-party 4 non-party 1 and the non-party 2 were assigned to the non-party 4 non-party 1 and the non-party 2 were assigned to the non-party 4 non-party 1 and the non-party 1 and the non-party 4 were assigned to the non-party 1 and the non-party 2 were assigned to the non-party 4 non-party 1 and the non-party 3 were assigned to the non-party 1 and the non-party 4 were the non-party 1 and the non-party 4 were the non-party 1 and the non-party 1 were the non-party 1 and the non-party 2 sold 70.
2. Regarding ground of appeal No. 1
The allegation in the grounds of appeal that the attachment concurrence of the assignment order of this case should be determined including KRW 6,526,00,000,000 for claims subject to the assignment order of this case, at the time of the delivery of the assignment order of this case between the defendant and the non-party 3 as of June 9, 2004, is apparent in the record that it was a new assertion raised for the first time in the final appeal, and thus, it cannot be a legitimate ground of appeal.
In addition, a claim for performance that includes the purport that a contract is terminated as a matter of course within the prescribed period shall be deemed to have expressed the intention of rescission in advance on the condition that the contract is not performed within the prescribed period at the same time (see Supreme Court Decision 92Da28549, Dec. 22, 1992). According to the records, the part payment was made on July 9, 2004 by Nonparty 3 when entering into a sales contract with the defendant on June 9, 2004; the part payment was received on August 8, 2004; the part payment and the balance were not paid at all; the defendant did not pay the part payment and the balance; thus, on August 3, 2004, the defendant notified that "in the event that the part payment is not made by August 9, 200, the contract is automatically rescinded without any specific notice; and on August 20, 2004, the non-party 3 did not pay the remainder of the part payment to the defendant 2000.6.
3. Regarding ground of appeal No. 2
It is difficult to accept the lower court’s determination on whether there exists competition between the Defendant and the Defendant on the basis of only the revenue equivalent to the penalty that the Defendant had received during the public auction procedure for the following reasons.
In a case where an assignment order is issued under the overlapping of seizure of a future uncertain claim, the issue of whether the assignment order becomes null and void due to the competition of the seizure should not be determined based on the amount of the claim finally finalized, but on the basis of the amount of the claim under contract under which the assignment order was served on the third debtor (see Supreme Court Decision 98Da15439, Aug. 21, 1998). Since granting an assignment order of the future uncertain claim is expected to have a considerable amount of claim in the near future, permitting the assignment order of the future uncertain claim, it is reasonable to view it as the amount of the claim under the contract after comprehensively taking into account all the circumstances, such as the process and details of the contract, the progress and progress of the execution, the possibility of the future claim under the contract, the nature of the claim, and the contents thereof, etc., and it is reasonable to regard it as the amount of the claim under the contract if it is impossible to identify the future claim.
According to the records, the trust contract of this case includes an agreement that, where the truster non-party 1 et al. did not pay the principal and interest of the loan to the foreign exchange bank, which is the priority beneficiary, and the defendant sells the real estate of this case, if there remains a balance remaining after deducting senior dividends equivalent to the principal and interest of the loan from income, such as realization fees, and the disposal of the real estate of this case shall be conducted through competitive bidding in principle, but the estimated price shall be determined at a level more than the appraised value of the appraisal specialized institution. In principle, where the real estate of this case is sold by public auction, the amount of the dividend payment claim of this case held by the truster non-party 1 against the defendant is not determined at the time when the assignment order of this case was delivered, and the amount is not determined at the time of the delivery of the assignment order of this case. The defendant concluded a sales contract of this case with the purchase price of 6,526,000 won and cancelled all of them, and at the time of delivery of the assignment order of this case, the defendant calculated the amount of non-party 168168
In light of the above legal principles, the dividend delivery claim of this case against the defendant of this case, which is the claim subject to the assignment order of this case, was not determined in the trust contract of this case, which is the basis of the occurrence of the claim, but the requirements for the occurrence of the claim are clearly specified. In addition, there is no evidence to deem that the public sale procedure is in progress at the time of the assignment order of this case and there is no reason to view that the non-party 1 et al. are able to repay the principal and interest of the loan to foreign exchange bank. In addition, since the dividend delivery claim of this case is based on the premise that senior dividends and public sale expenses are deducted from earnings such as proceeds from the sale price of the real estate of this case, etc. at the time of the delivery of the assignment order of this case, the amount of the dividend delivery claim of this case which is expected to occur in the future under the trust contract of this case should be determined as being equivalent to the market price of the real estate at the time of delivery of the assignment order of this case (in light of the above factual relations, the amount equivalent to the sale price under the above sale contract of this case as well as at the revenue and the sale order of this case.
Therefore, the court below should calculate the amount of dividend payment claim of this case under the trust agreement of this case at the time of service of the assignment order of this case after further deliberation on the nature and contents of the trust contract of this case and the dividend payment claim of this case, the sale price or market price of this case anticipated at the time of service of the assignment order of this case, and public sale expenses, including preferential dividend payment and realization fees to foreign exchange banks, etc. In addition, the court below determined that the amount equivalent to the non-party 1's share is the seized claim under the trust agreement of this case among the remainder remaining after deducting the penalty and the expenses for the public sale procedure from the sum of the proceeds received by the defendant during the public sale procedure to the time of service of the assignment order of this case and the financial interest thereof, and that there exists competition with the assignment order of this case. The court below erred in the misapprehension of legal principles as to the concurrence of seizure of the assignment order of this case as to
4. Therefore, without examining the remaining grounds of appeal by the Plaintiff, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Nung-hwan (Presiding Justice)