[전부금][공2000.12.1.(119),2288]
[1] Whether a buyer’s claim for the refund of the purchase-price against a seller arising from the cancellation of a sales contract may be subject to an assignment order even before the cancellation of a sales contract (affirmative)
[2] In the case of an assignment order with a conditional claim created in the future as a seized claim, the point of time to determine whether the assignment order is concurrent with seizure of the seized claim affecting the validity of the assignment order (=when the assignment order is served on the garnishee)
[1] Where a sales contract is terminated, a purchaser's claim for the return of the already-paid sales price to the seller shall be the basis of the claim and a monetary claim with a certain face value not yet accrued until the sales contract is terminated, but shall be the subject of an assignment order.
[2] Where an assignment order becomes final and conclusive, the execution claim is naturally transferred to the obligee within the scope of the execution claim and simultaneously becomes effective at the same time when the execution claim becomes final and conclusive. Thus, if the execution claim does not coincide as of the time the assignment order is served on the garnishee, the execution claim attachment order cannot affect the validity of the assignment order. Such a legal principle also does not change even if the execution claim occurs in the future.
[1] Articles 548 and 563 of the Civil Act, Article 563(1) of the Civil Procedure Act / [2] Articles 563, 564, and 568-2 of the Civil Procedure Act
[2] Supreme Court Order 84Ma13 dated June 26, 1984 (Gong1984, 1420) Supreme Court Decision 95Da4681 Decided September 26, 1995 (Gong1995Ha, 3521) Supreme Court Decision 99Da70716 Decided April 21, 200 (Gong200Sang, 1244)
Plaintiff (Law Firm Vindication, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)
Defendant
The Intervenor joining the Defendant (Law Firm Samyang, Attorneys O Sang-gn et al., Counsel for the defendant-appellant)
Seoul High Court Decision 99Na67347 delivered on May 19, 2000
The appeal is dismissed. The costs of appeal are assessed against the defendant joining the defendant.
The Defendant’s Intervenor’s grounds of appeal are examined.
In the event that a sales contract is rescinded, a purchaser’s claim for the repayment of the purchase-price to the seller is based on the basis of the claim and has not yet been created until the sales contract is rescinded, but a monetary claim with a certain face value is subject to an assignment order. Furthermore, since an assignment order becomes final and conclusive, the seized claim is naturally transferred to all creditors within the scope of execution claim and simultaneously becomes effective at the same time when the order is served to the third obligor. Thus, if the assignment order does not conflict as at the time of delivery to the third obligor, the attachment order does not affect the validity of the assignment order, and such legal principle does not change even if the seized claim occurs in the future (see, e.g., Supreme Court Decisions 84Ma13, Jun. 26, 1984; 95Da4681, Sept. 26, 1995; 90Da716, Apr. 21, 200).
According to the reasoning of the judgment below, the court below concluded a sales contract with the defendant on April 18, 1990 to purchase each land as stated above, and paid 240,000,000 won in total as part of the intermediate payment and the balance until February 5, 1991. The plaintiff's cancellation of the sales contract on December 27, 1994 based on the notarial deed with executory power against the non-party company, which affected the non-party company's right to claim for the payment of 250,00,000,000 won, which was issued by the non-party company before the above order was issued to the non-party company for the cancellation of the sale contract and the assignment order for the non-party company's cancellation of the sale contract, and there was no error of law as to the plaintiff's cancellation of the sale contract and assignment order for the non-party company's cancellation of the sale contract as well as the assignment order for the non-party company's cancellation of the sale contract in whole and in part.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Lee Yong-woo (Presiding Justice)