Jeonju-si, Masan-ro 43, 000,000 (Seodong, 000 apartments)

[Defendant-Appellee-Appellant]

[Defendant-Appellee] Attorney Kim Sung-chul, Lee Young-chul

1. Lighting00

2. Error00

[Defendant’s Address Jeonju-si, Yusan-ro 101, 000 Dong 000

(Seodong, 00 Apartments)

[Plaintiff-Appellee] Defendant 1

[Defendant-Appellee] Plaintiff 1

2. The plaintiff's remaining claims against the defendants are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendants.

4. Paragraph 1 can be provisionally executed.

The following facts may be admitted, either in dispute between the parties or in full view of the respective descriptions of Gap evidence of 1 to 3, Eul evidence of 1 to 3 (including each number), and the whole purport of pleadings:

A. Defendant 00 was appointed as the representative director of 00 Construction Co., Ltd. (hereinafter “Construction”) on January 25, 2002, and was in office as the representative director until the date of closing the argument of this case. Defendant 1, 00 was in office as the representative director from January 25, 2002 to December 30, 2013.

B. 00 Co., Ltd. (hereinafter “00”) was ordered on February 1, 2010 between 00 construction companies, which were the contractor of the Korea Development Bank, and the construction cost for the said construction works (hereinafter “instant construction”) and the construction period of 763,40,000 won (including value-added tax) and February 2, 2010 with respect to the said construction works.

ter A subcontract for the end of February 25, 2012 (hereinafter referred to as “instant subcontract”) was concluded.

C. Jeonju-si, 00 Construction, and 00 agreed to pay the subcontract price directly to 00, the Jeonju-si, a contractor, at the time of the conclusion of the said subcontract (Article 35 of the Framework Act on the Construction Industry, Article 29 of the Enforcement Rule of the same Act, Article 14 of the Fair Transactions in Subcontracting Act, and Article 4 of the Enforcement Decree of the same Act), and with respect to the method and procedure thereof, the subcontractor (00) shall, in principle, apply for the classification of the details of the completed portion and request for the separation of the subcontract price, and where it is inevitable, the contractor (00 construction) may file a request for the replacement and claim for the replacement (hereinafter referred to as the “instant direct payment agreement”).

D. The Plaintiff filed a payment order with the Jeonju District Court No. 2012 tea 175 to seek payment of a promissory note amount against 00, January 12, 2012, and 00 was ordered to pay to the Plaintiff KRW 150,00,000, and KRW 00, and the delayed losses therefrom.

E. On February 21, 2012, the Plaintiff applied for a seizure and collection order with the Jeonju District Court 20151 with respect to the right to claim the payment of the subcontract price in this case against 00 00-00 construction title, which is the debtor 00, 000-1151 with the Jeonju District Court 201, and the third debtor 53,065, and the amount of the claim is KRW 133,000, and was issued a seizure and collection order. The above seizure and collection order was served on February 24, 2012.

F. After that, the Plaintiff again filed an application with the Jeonju District Court 2012TTT2978 to construct the debtor 00, 3 debtor 00, 63, 762, and 104 won with respect to the instant sub-contract claim against 00 00 construction as the executive title, and filed an application for the seizure and collection order of the claim (hereinafter referred to as “each of the instant claims seizure and collection order” as well as the seizure and collection order of the first claim on February 21, 2012) and received the decision of acceptance on April 24, 2012. The above seizure and collection order was served on April 27, 2012.

G. 00 KRW 81, 172, 00 on May 17, 2012, around July 17, 2012, KRW 206, 140, 00 on July 17, 2012, and KRW 287, 312,00 on a total of KRW 287, 312,00 on demand for payment of subcontract consideration under the instant direct payment agreement at Jeonju.

H. The Plaintiff filed a lawsuit claiming the payment of the collection amount based on the collection order (former District Court Decision 2013Da3247, hereinafter “instant collection lawsuit”), and the said legal officer rendered a final judgment of 16, 827, and 237 won to the Plaintiff, as well as 5% per annum from November 23, 2012 to December 10, 2012, and 20% per annum from the next day to the date of full payment, and 30% of the costs of lawsuit to the date of full payment, which became final and conclusive on November 22, 2013, which became final and conclusive on the part of the Plaintiff 14, while the said court rendered a final and conclusive judgment of 30% with respect to the Plaintiff’s withdrawal of provisional execution. < Amended by Presidential Decree No. 24289, Nov. 23, 2012; Presidential Decree No. 20650, Mar. 1, 2013>

(i) Construction 00, on November 22, 2013, the decision of the first instance court rendered on November 22, 2013, with the consent of all members present at a general meeting consisting of Defendant 100, 00, 000, from 10,000 to 10,000, and 00, and 600,90,000 to Defendant 10, and 353,460,000 to Defendant 00, and 353,460,000 to Defendant 10;

A resolution was made to refund KRW 235, 640, and 000 to the original Kim 00 (hereinafter referred to as the "resolution of this case").

(j) On November 26, 2013, construction 00 decided to reduce the total amount of 1,200,000,000 won in a general meeting of partners as of November 22, 2013. Any creditor who has an objection to this capital reduction lawsuit filed an objection by December 29, 2013, and announced the reduction of capital to the effect that “I” company would raise an objection to this capital reduction of KRW 1,20,000,000.

C. On December 30, 2013, as the time limit for the filing of the above objection has expired, the reduction of capital of 00 construction according to the instant resolution has become final and conclusive. On the same day, the registration of changes was completed with respect to 00 construction from KRW 1,200,00,000, to KRW 10,000, and KRW 00.

2. The plaintiff's assertion

A. Liability due to nonperformance of the duty of commission under the good faith principle

Subcontract price paid directly to 00 per Jeonju City is 00,00,000,000,000,000,000,000

A. Upon receipt of the original copy of the order of seizure and collection of each of the respective claims of this case from the court, the court takes measures to prevent the payment of the construction price from being paid to 00 who is the debtor by notifying the fact at the pre-sale and reserving the direct payment of the subcontract price, and the subcontract price to 00 shall be the seizure and collection order

In light of the purport of the above, Defendant 00 is obligated to act in accordance with the principle of good faith to actively take measures so that each of the claims seizure and collection orders of this case does not constitute punishment. Defendant 00, the representative director of 00 construction, and Defendant 00, who was the director at the time, did not perform the duty to act in accordance with the above principle of good faith, and was paid directly from 00 Jeonju City, thereby causing damage to the Plaintiff by getting out of the above seizure and collection order of the above claim. Accordingly, Defendant 00 is obligated to compensate for the above damage to the Plaintiff based on Article 210 of the Commercial Act applied mutatis mutandis under Article 567 of the Commercial Act and Article 750 of the Civil Act, pursuant to Article 401 of the Commercial Act and Article 750 of the Civil Act applied mutatis mutandis under Article 567 of the Commercial Act, and Article 750 of the Civil Act.

(b) Responsibility for violation of procedures for protecting creditors;

Since the reduction of capital is an act of a company that may affect the creditors of the company under the Commercial Act, the company shall notify the creditors known to it of the resolution to reduce capital and notify them of their objection to it, and if the creditors raise an objection to the reduction of capital, the company shall suspend the procedure and provide creditors with repayment or reasonable security, etc. However, the Defendants, an officer of 00 Construction, who were the officers of the company, did not notify the Plaintiff of the resolution to reduce capital due to considering the litigation data and other circumstances of the collection amount case at the time of the resolution to reduce capital in this case, and thereby, the Plaintiff caused damages equivalent to the amount of collection claims as a result of the Plaintiff being deprived of repayment due to the objection or an opportunity to secure adequate security. Accordingly, Defendant 00, based on Article 210 of the Commercial Act or Article 750 of the Civil Act applied mutatis mutandis pursuant to Article 567 of the Commercial Act or Article 401 of the Civil Act, Defendant 00, which is jointly and severally liable to compensate the Plaintiff for damages under Article 750 of the Civil Act.

3. Determination

A. Liability due to nonperformance of the duty of commission under the good faith principle

The Defendants’ respective bond pressure on February 24, 2012 and April 27 of the same year, 198, 00 construction, and 198.

The fact that the debtor, who is the debtor of the attachment and collection order of each of the instant claims of this case, has been paid the subcontract price of KRW 287,312,00 in total, around May 17, 2012, around 81, 172, 000, around July 17, 2012, and around KRW 206, 140,000, around July 17, 2012 is as seen above. Meanwhile, in cases where there is a seizure and collection order under the Civil Execution Act, if there is an execution creditor's request, the third debtor has the duty to state whether to recognize the claim, payment intention, etc., and the third debtor, who has been served a written demand for distribution concerning the right to money claim, shall deposit the amount which has been seized, and the portion which has not been exceeded the part of the monetary claim shall deposit when the third creditor's request for distribution is made.

Where a seizure order or provisional seizure order has been repeatedly issued, the garnishee served on the order shall, upon a request of the execution creditor, deposit the full amount of such claims (Article 3 (3) of the same Act).

section 10 of the title of the seizure order to maintain the present state at the time of the seizure order in order to ensure the satisfaction of the execution claim, and not specifically provide for the third party debtor's duty to act.

The third debtor, in principle, bears the duty of prohibiting payment to the debtor in excess of this duty.

In addition, it is difficult to view that a third party who notified a debtor of the attachment of a claim or directly pays the amount to the debtor for the execution creditor is not liable for a failure to act under the good faith principle, such as withholding a direct payment of the subcontract price. Thus, the plaintiff's above assertion is contrary to this, and there is no reason to further consider the remainder.

(b) Responsibility for violation of procedures for protecting creditors;

1) Liability for damages

A) Whether an offense is committed

The collection order against the money claim shall be issued to the collection creditor in the procedure of compulsory execution.

(2) The debtor is entitled only to collect claims against the third debtor, and this is thereby entitled.

The claims against the third obligor do not transfer or belong to the collection obligee, but the collection obligee does not exercise the right of choice, right of rescission, right of termination, right of rescission, right of cancellation, etc. as the creditor against the third obligor under the ability of collection and demanding performance to or receiving performance to the obligor under the ability of collection.

claim against the witness may also be made directly, and if there is a security right, such as a pledge, mortgage, etc., to be collected, the exercise of the security right in his/her name shall also have the right to exercise the security right directly.

As the creditor may apply for auction, the right of the creditor to seek performance, etc. to the third debtor on the basis of the creditor's right of collection is also included in the scope of "claim protected by the creditor protection procedure under Articles 597, 439, and 232 of the Commercial Act". In particular, the creditor shall be included in the scope of "claim protected by the creditor protection procedure."

(2) In the event that a claim for collection has been filed and a judgment of acceptance has been rendered, the collection obligee shall

In contrast to having the expectation to obtain satisfaction of the claim through the execution, the person liable for the obligation of the seizure and collection order may not receive repayment from the third debtor by the effect of the seizure, as well as the performance lawsuit.

the third debtor cannot be demanded to discharge the obligation to be seized because he/she has no standing to be the party thereto;

Then, in such a case, a person who is substantially affected by the change of a third-party debtor's liability property, such as the reduction of the company's capital, is a collection creditor than the debtor. Thus, if a limited liability company makes a decision to reduce its capital, the scope of creditors who should guarantee the opportunity to raise

In addition, in the case of an action for collection, it should be deemed that the third debtor company, even if disputing the existence of a claim for collection under a lawsuit, should have investigated litigation data and other circumstances and recognized the creditor, who is the plaintiff, as "creditors" under Article 232 of the Commercial Code. This is more true in the case where the creditor, who is the plaintiff, won the collection, is sentenced to the first instance judgment of the lawsuit for collection and won the collection, so in such a case, the company which made a resolution for reduction of capital, as such, Article 597 of the Commercial Code.

A separate peremptory notice shall be given to collection creditors as to a resolution to reduce capital and whether an objection has been raised pursuant to Articles 439 and 232.

In light of the aforementioned legal principles, on November 22, 2013, the date when the court rendered a judgment on the Plaintiff’s winning judgment on the instant monetary collection lawsuit. The fact that construction of 00, the third debtor of each of the instant claims seizure and collection order, held a general meeting of members, the representative director of the Defendant 1,200, 000, 000 won to reduce the capital from 10,000 won to 10,000 won to 10,000 won, and 00 won, with the consent of all the members present.

as seen earlier, 00 Construction is a creditor protection procedure, by a ruling of the collection amount of this case.

Any objection to the above capital reduction resolution against the Plaintiff, a collection creditor known to the existence thereof.

There is no dispute between the parties as to the fact that there is no such fact even if it had been notified that it should be submitted within a certain period of time, construction in the end is erroneous in failing to comply with the procedure for protecting the right holder against the plaintiff.

B) the existence of intention or gross negligence

The following circumstances, i.e., the representative of 00 construction, a private person, held a general meeting of members on November 23, 2013, which is the date the decision on collection of the collection of the instant case was rendered, on which: (a) the representative of 00 construction held a general meeting of members on November 23, 2013, which is the date the decision on collection of the instant case was rendered.

(5) The total capital of 00 : 10, 00, 00 ; 26, 010, 000 ; 00 ; 30, 400 ; 30,000 ; 40,000 ; 60,000 ; 30,000 ; 40,000 ; 60,00 ; 60,00 ; 30,00 ; 60,00 ; 40,00 ; 60,000 ; 30,000 ; 40,000 ; 0,000 ; 30,000 ; 6,000 ; 6,00,000 ; 30,000 ; and 3,00,00 ,00 ; and 3,00,00 ,00 ,00.

(7) As of the date of closing argument of this case, the Defendants acknowledged that there was no particular asset other than 10,00,000 won and the license for construction business registration of 00 construction as of the date of this case’s closing argument and that there was no special asset other than 00,000 won, and 80 cases where the Plaintiff had been sentenced to provisional execution against 00, under the first instance court ruling of this case’s collection lawsuit, it seems that there was no particular asset other than 00,000 won, and that there was no special asset other than 00,000 won for the Plaintiff as a representative director or director of this case’s collection lawsuit of this case’s collection lawsuit of this case. In light of the above fact that the Defendants did not receive the above 00,000 won and 00,000 won as of the date of this case’s collection lawsuit of this case’s collection lawsuit of this case’s monetary reduction, the Defendants did not have any financial resources other than 00,000 won.

C) Sub-decisions

Accordingly, Defendant 00 as the representative director of the 00 Construction, based on Articles 567 and 210 of the Commercial Act, and Defendant 00 as a director of the 00 Construction at the time of the instant resolution, based on Articles 567 and 401 of the Commercial Act.

the Defendants’ joint and several liability for damages incurred by the Defendants’ failure to perform their creditor protection procedures

section 23(3).

2) Scope of damages

A) Article 232(3) of the Commercial Act, which applies mutatis mutandis pursuant to Articles 597 and 439 of the Commercial Act, provides that when there is any creditor who has filed an objection to a resolution to reduce capital of a limited liability company, the company shall make repayment to the creditor or provide adequate security, or trust a company with considerable property for this purpose. The fact that the amount of the Plaintiff’s right to collect the collected money determined by the judgment on the collection money in this case is 16,827,237, and the fact that the capital of 00 construction at the time of the resolution to reduce capital in this case is 1,20,000,000 as seen earlier, the Defendants did not neglect their duties and notified the Plaintiff of the resolution to reduce capital and raised an objection thereto.

If the plaintiff notified whether or not it was a company creditor, the plaintiff filed an objection to the resolution of this case and received repayment for the collection claim from construction 00 construction, or received property equivalent thereto as security. However, in fact, due to the defendants' breach of duty as above, the plaintiff lost its meeting of satisfaction, the damage suffered by the plaintiff is KRW 116, 827, 237, which is equivalent to the above collection claim.

B) However, as to the starting point of the starting point of the damages for delay, the Plaintiff was directly paid the subcontract price of this case two times from the Jeonju City on the two occasions due to the Plaintiff’s failure to perform his duty of commission under the good faith principle.

At the time of the plaintiff's occurrence of damages, and the plaintiff claimed damages for delay from July 28, 2012, the second payment day following the second payment day, and therefore, the plaintiff's failure to perform his duty of commission under the good faith principle.

As seen earlier, the Plaintiff’s assertion as to the violation of the creditor protection procedure is without merit.

The defendants' liability for damages is no longer effective with the lapse of the filing period of the objection against the resolution of this case.

The Defendants, as high-priced creditors, have been embodied only when they cannot contest the reduction of capital in this case, and the Defendants, as the Defendants, on November 26, 2013, as the Defendants, on November 22, 2013.

A general meeting passed a resolution to reduce the total amount of capital to KRW 1,200,000,000,000,000,000.

D. Any creditor who has an objection to the reduction of the capital has filed an objection by December 29, 2013 and filed an objection.

As seen earlier, a public notice of the reduction of capital was given in the manner that the notice was made, as well as the notice thereof.

In light of the legal principles as seen earlier, the time limit for raising an objection to the resolution of this case was followed.

On December 30, 2013, the date of the instant reduction of capital becomes final and conclusive, and the Plaintiff’s damage claim against the Defendants.

Since the plaintiff's right to claim for delay damages against the defendants is also established, the starting point of counting the plaintiff's right to claim for delay damages against the defendants is December 30, 2013.

3) Sub-decisions

Therefore, the Defendants jointly and severally liable for damages to the Plaintiff KRW 116, 827, 237, and as to the damages.

From December 30, 2013 to December 30, 2013, the date of the occurrence of the damage claim, the statement that it is the date of delivery of a copy of the complaint of this case.

By November 12, 2014, 5% per annum under the Civil Act; 20% per annum from the following following day to September 30, 2015; and 15% per annum from the next day to the date of full payment (the provisions on statutory interest rate under the main sentence of Article 3 (1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings were amended by Presidential Decree No. 26553, Sept. 25, 2015; the period from October 1, 2015 changed to 15% per annum).

have a duty to take such action.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is reasonable within the scope of the above recognition, and the remaining claims are dismissed as there is no ground, so it is so decided as per Disposition.

Judges South Seahn

Judges Cho Jin-jin