2014da11414. Confirmation of the right to claim the withdrawal of deposits.

2. It is confirmed that between the Plaintiff (Counterclaim Defendant) and the DefendantCC, D, and the Defendant (Counterclaim Plaintiff)’s shares EE, Korea, the deposit claim for KRW 00,000,000 out of the deposit under Paragraph 1 is against the Plaintiff (Counterclaim Defendant).

3. Between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff), EE, and Korea, revocation of the assignment of claims between the Plaintiff (Counterclaim Defendant) and the Defendant BB on June 4, 2013.

B. The Plaintiff (Counterclaim Defendant) notified the Defendant Company that he transferred the right to claim the withdrawal of the deposit under Paragraph (1) to the Defendant Company BB, and that he transferred the said claim to the Republic of Korea (the deposit officer of the Seoul Southern District Court).

4. The plaintiff (Counterclaim defendant)'s remaining claims against the defendantCC and D, and the defendant (Counterclaim plaintiff) EE, and the remainder of the main claims against the Republic of Korea are dismissed.

5. Of the litigation costs incurred in the principal lawsuit, the part arising between the Plaintiff (Counterclaim Defendant) and the Defendant BB shall be borne by the said Defendant, and the part arising between the Plaintiff (Counterclaim Defendant), the Defendant, the Defendant, and the Defendant (Counterclaim Plaintiff), the EE, and the Republic of Korea, shall be borne by the said Defendants (including the Counterclaim Plaintiff), the Plaintiff (including the Counterclaim Plaintiff), and the costs incurred from the counterclaim, shall be borne by the Plaintiff (Counter-Defendant).

“The Defendant, and the Defendant (hereinafter “Defendant”) confirm that the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff 1”) is the person entitled to claim the payment of deposit amount of KRW 00,000,000 deposited by FF with the Seoul Southern District Court Decision 2000, Dec. 0, 2013, Seoul Southern District Court Decision 2013.” [Counterclaim]

가. 피고 주식회사 BB(이하 BB'라 하고, 주식회사인 사건관계인은 주식회사 표시를 생략한다)는 원고 등 60여 개의 의류업체로부터 의류 완제품을 납품받거나 의류 원・부자재를 납품받아 가공하여 '###'이라는 브랜드로 GG의 매장 등에서 판매하던 중 2013. 4. 경 부도처리되었다.

(b) Assignment of claims made on April 00, 2013

1) On April 18, 2013, Defendant BB entered into a contract on the assignment of claims with the effect that, as between H and H on April 18, 2013, Defendant BB, “A debtor (transferor)” (the assignee) transferred the goods to FF, a third debtor, and notified F, of the fact of the said assignment of claims to F, with the effect that, in order to secure the obligation to be effectively held in the present and future, Defendant B B would supply and acquire the goods to H, the third debtor, and that, on April 2013, Defendant B would transfer the goods to H and the goods stored in the Jcom warehouse and each business store, etc. on the same day, Defendant B entered into a contract on the transfer of movables and the goods that the transferee would be subject to voluntary disposal by the transferee to meet the obligation of Defendant B, and would be subject to the repayment of the obligation of the third debtor (hereinafter “instant movable property”).

(2) On April 26, 2013, Defendant BB and H sent the FF notice of assignment of claims to FFF on April 18, 2013, with the employee’s business error. The above notice of assignment of claims is part of creditors and is subject to a fraudulent act revocation lawsuit, and thus it is a civilly effective and transferred to a non-legal person so that legal problems may not arise. HH (c) as of May 2013, the Plaintiff between the Plaintiff and the Plaintiff, the first Defendant B B’s claim representative H retired from the office of the claim delegation as of May 00, and the Plaintiff sent the FF notice of assignment of claims to the Plaintiff on April 10, 2013, with the content that “the FFF notice of assignment of claims newly elected to FFF under the said contract,” and the Plaintiff sent the FF notice of assignment of claims to the Plaintiff on April 26, 2013. The Plaintiff sent the FFF notice of assignment of claims to the Plaintiff on June 30, 2013013.

D. DefendantCC, D, E, and Korea received a provisional attachment, attachment, and assignment order, etc. on the product price claim against Defendant BF as the preserved claim.

E. F under Article 487 of the Civil Act, based on Article 248(1) of the Civil Execution Act, F made a mixed deposit of KRW 000,000,000 for the goods against Defendant BB by making the deposited person to the Plaintiff or Defendant B as the depositer under the Seoul Southern District Court’s Deposit No. 0000, 2013, based on the following grounds: (a) the assignment of claims and the seizure of multiple claims, as seen above, conflict with the assignment of claims and the seizure of claims on December 0, 2013 (hereinafter “instant deposit”).

[Grounds for Recognition] Each entry into the non-strifed facts, evidence A through 6, evidence A through 8, and evidence B and E Nos. 3 and 3 (Evidence Nos. 1 to 2, hereinafter the same shall apply), and the purport of the entire pleading

2. Judgment on the plaintiff's main claim

A. The plaintiff's assertion

1) The primary argument

Defendant B transferred all inventory goods and business to the creditors comprised of the Plaintiff including the Plaintiff on April 18, 2013, and HK, which was the representative of the claim group, takes over the clothing that was transferred by investing KRW 5222 million in the credit group, and the credit group, as a result of the suspension of sales, such as employing the employees in charge of the business and selling the clothing that acquired the ownership by acquiring the ownership as above, and as long as the movable transfer contract is not null and void on April 00, 2013, the instant deposit is not the Plaintiff’s claim but the representative of the claim group. Defendant B transferred the credit to H on April 18, 2013 and notified the credit transfer to F, and the claim against the Plaintiff on June 30, 2013, the claim against the Plaintiff was actually made on June 40, 2013.

2) Preliminary assertion

Even if not, the assignment of claims to the Plaintiff was made on June 00, 2013, and the notification was made lawfully on June 00, 2013, and the amount of claim 00,000,000 won for FF incurred after the notification of the said transfer out of the instant deposit is entitled to claim payment to the Plaintiff.

B. Determination as to the claim against Defendant BB

The plaintiff's above assertion has no dispute between the plaintiff and the defendant BB, and the plaintiff has a legal interest in seeking confirmation of the plaintiff's claim for payment of deposit in relation to the defendant BB, who is another depositor, to pay the deposit of this case, and the plaintiff's claim against the defendant BB is justified.

C. Determination on claims against DefendantCC, DD, E, and Korea

1) As to the primary argument

A) Facts of recognition

(1) Around the time when Defendant B B’s default on payment, the claims group constituted 57 companies, such as clothes and raw and subsidiary materials suppliers. On April 00, 2013, the representatives of the claims group were HH and J but the representatives were changed from the Plaintiff and J on May 00, 2013, and financial institutions, including Defendant D, E, were not included in the claims group, and there were many creditors who were not affiliated with the claims group.

(2) On May 00, 2013, Defendant B requested F to change a business operator to the Plaintiff due to managerial problems, but F refused to change the business operator on the grounds of internal procedural issues, etc., and the name of the Plaintiff was changed from July 00, 2013 to the Plaintiff.

(3) On April 00, 2013, when Defendant BB’s Jcomer demanded payment of the service charges, the Plaintiff, who was trying to exercise the right of retention for Defendant BB’s inventory clothes, was paid the service charges from the Defendant B’s account until May 00, 2013, following consultation between Jcomn and the service charges, and payment procedures.

(4) From around July 00, 2013, when Defendant BB’s default, the Plaintiff directly managed Defendant BB’s bank account, and around July 0, 2013, when the name of the business operator was changed, the sales proceeds deposited by FF to Defendant BB account was also managed, and the Plaintiff remitted the money of clothes sales deposited to Defendant BB account to the Plaintiff’s account or re-transfer it to Defendant BB account to the Plaintiff for the expenses necessary for clothing sales. The Plaintiff paid the fee to the sales intermediary manager, refund of deposit, office rent and management expenses, etc. from Defendant B’s account.

(5) On April 00, 2013, the Plaintiff entered into an employment contract with eight of the employees of Defendant BB up to December 00, 2013, and sold the inventory of Defendant BB in a set, etc. operated by FF, which had been engaged in previous transactions. The Plaintiff did not put any separate expense in the process of selling the inventory of Defendant BB, sold the clothing kept by Defendant BB as it was, and the sales activities were terminated from September 2013, when it was no longer possible to sell the inventory of the stock secured by Defendant BB.

[Reasons for Recognition] Gap's 5, 6, 9 through 19, and Eul's 4, the purpose of the whole pleadings

B) Determination

In light of the following circumstances, i.e., (1) Defendant BB had no active property other than the clothing goods kept in its custody at the time of bankruptcy; (2) Defendant BB refused the Plaintiff’s request for change of name; and (3) Defendant BB made a deposit of this case with the Plaintiff’s account as the cause of deposit; (4) Defendant BB concluded a contract on the transfer of claims to H on April 00, 2013 with the Plaintiff’s account’s inventory, but the said assignment of claims was invalid on April 00, 2013; and (4) Defendant BB’s initial account transfer of claims against the Plaintiff on the date of transfer of claims; and (5) Defendant BB had no initial account transfer of claims between the Plaintiff and the Plaintiff, and the Plaintiff’s initial account transfer of claims under the name of the Plaintiff’s account holder.

C) Sub-determination

Therefore, the plaintiff's primary arguments against the defendantCC, D, E, and Korea are without merit.

2) Determination on the conjunctive assertion

A) Whether the assignment of claims is effective

According to the above facts, on June 4, 2013, the Plaintiff acquired KRW 0 billion from Defendant BB to F of the goods price claim to be acquired by Defendant B’s supply of goods to F, and the credit assignment notice with the fixed date reaches F on June 7, 2013, it is reasonable to deem that the Plaintiff was legally transferred from Defendant BB the goods price claim against F through the credit assignment contract as of June 4, 2013.

In this regard, Defendant D, E, and Republic of Korea did not prepare a contract for the assignment of claims as of June 0, 2013, Defendant BB had already transferred the claims to H and did not have the right to transfer the same claims to the Plaintiff. Thus, the assignment of claims constitutes double claim constitutes a transfer of claims, and the above contract for the assignment of claims is invalid, but it cannot be deemed that there was no contract for the assignment of claims solely on the ground that the contract for the assignment of claims was not prepared on April 00, 2013. As recognized earlier, insofar as the assignment of claims becomes invalid on April 00, 2013, Defendant BB cannot be deemed as a dual transfer of claims to the Plaintiff.

B) Scope of the Plaintiff’s right to claim deposit withdrawal

A’s claim for the amount of goods against FF acquired by the Plaintiff is KRW 00,00,000,000, excluding the amount of divided sales, incurred before June 0, 2013, when the notice of the assignment of claims was received by the Plaintiff, comprehensively taking account of the overall purport of the pleadings in the statement No. 20, and the Plaintiff’s claim for goods payment against F

The order between the transferee of the claim and the person who executed provisional attachment or seizure order with respect to the same claim is to be determined by the date when the notice of assignment of claim with a fixed date reaches the debtor, and after the date when the original copy of the decision of provisional attachment or seizure order reaches the garnishee (debtor in the above assignment of claim) reaches the garnishee (see Supreme Court Decision 93Da2423, Apr. 26, 1994).

According to the above facts, the notice of the assignment of claims on June 0, 2013 by the certificate with a fixed date on the assignment of claims by the Plaintiff on June 0, 2013 reaches FF, which is the garnishee on June 0, 2013, prior to the attachment and provisional attachment order of claims by Defendant D, EE, and the Republic of Korea, and between the Plaintiff and the said Defendants, the right to claim payment of KRW 00,000 out of the instant deposit belongs to the Plaintiff. DefendantCC had priority over the Plaintiff on May 00, 2013, which was prior to the notification of the provisional attachment order of claims by the Seoul Western District Court 2013Kadan000, which was prior to the notification of the assignment of claims by the Plaintiff on May 00, 2013, since the provisional attachment order of claims by the Plaintiff on June 0, 2013, the amount of claims by the Plaintiff on the provisional attachment amount and the Plaintiff on the acquisition of claims by the Plaintiff on the basis that each claim exists.

Meanwhile, as seen earlier, the deposit in this case constitutes a mixed deposit. In light of the purpose of the mixed deposit, the deposit is deposited not only by the depositee but also by the execution creditor in order to obtain the recognition of the claim from the debt. Thus, in order for the deposit to claim the withdrawal of the deposited goods, it is insufficient that the depositer has a document proving that the claim for the withdrawal of deposited goods has been made only in relation to other deposited parties, and that the execution creditor has a claim for the withdrawal of deposited goods in relation to the execution creditor (see, e.g., Supreme Court Decision 2011Da84076, Jan. 12, 2012; Supreme Court Decision 201Da84076, Jan. 12, 2012), and the Plaintiff has legal interest in seeking the confirmation that the claim for the withdrawal of deposited goods has been made in relation to the other provisional attachment authority and the other Defendants who correspond to the seizure authority.

C) Determination of Defendant D, E, and Korea’s defense

Defendant D, E, and Republic of Korea defense that Defendant BB’s transfer of F’s credit to the Plaintiff in excess of its obligation constitutes an act detrimental to the above Defendants, which is the obligee, and should be revoked.

As seen below in the judgment items on the counterclaim claim, the assignment contract between the plaintiff and the defendant BB should be revoked as it constitutes a fraudulent act, and the plaintiff has the duty to restore it to its original status, and considering the overall purport of the pleading in the statement No. 4, the defendant D filed a lawsuit seeking revocation of the above assignment contract against the plaintiff as Seoul Southern District Court 2014Gahap0000, and the plaintiff appealed, but the appellate court is proceeding with Seoul High Court 2015Na000.

However, the effect of revocation of a fraudulent act is not only caused by the final judgment of revocation, but also even if the judgment of revocation of a fraudulent act becomes final and conclusive, the legal act between the debtor and the beneficiary does not lose its validity retroactively, and the legal relationship between the debtor and the beneficiary can be restored upon the creditor's claim for restitution. Therefore, the above judgment was rendered by the Defendants seeking revocation of the said legal act and implementation of the procedure for assignment of claims on the ground that the said contract for assignment of claims was fraudulent, and until before compulsory execution based on the above judgment, the right to request withdrawal of KRW 00,000 out of the instant deposit shall still be deemed to have been attributed to the plaintiff under the contract for assignment of claims.

Therefore, the above defenses of Defendant D, E, and Korea are without merit.

3. Determination on Defendant E, and Korea’s counterclaims

(a)the existence of preserved claims;

1) Defendant EE

Comprehensively taking account of the purport of the entire argument in the statement in Eul evidence No. 1, Defendant EE entered into a credit transaction agreement with Defendant BB on August 00, 2009, and granted loans of KRW 00 billion on August 00, 2012, and KRW 00 billion on or around June 0, 2013, it can be recognized that the balance of Defendant BB’s loans was at least KRW 00 million on or around June 0, 2013, and thus, it constitutes a preserved claim for revocation of fraudulent act in this case.

2) Defendant South Korea

In principle, a claim that can be protected by the obligee’s right of revocation is required to be created prior to the commission of an act that can be viewed as a fraudulent act. However, there is a high probability that there is a legal relationship that has already been based on which the claim was established at the time of the fraudulent act, that is, the existing legal relationship is established in the near future, and that the continuity of the claim is realized in the near future, the claim may also become a preserved claim of the obligee’s right of revocation (see, e.g., Supreme Court Decision 2010Da68084, Jan. 13, 2011).

The evidence Nos. 1 and 3 of E are comprehensively taken into account the overall purport of the pleadings, and the value-added tax amount of 1, 2013 (from April 1, 2013 to June 30, 2013) in arrears by Defendant BB may be recognized as having been KRW 00,000,000. Thus, it was highly probable that there was no national tax claim against Defendant BB of the Republic of Korea as of June 0, 2013, but it was highly probable that Defendant BB would incur the national tax claim in the Republic of Korea within the nearest time as it was considerably ongoing in the tax period, and thereafter, it was highly probable that Defendant BB would have delayed the payment of taxes. Accordingly, the above claim also becomes a preserved claim for revocation of the fraudulent act in this case.

B. Insolvent of Defendant BB

Comprehensively taking account of the overall purport of the arguments in Eul evidence 4, Eul evidence 2, and Eul evidence 2, around June 0, 2013, Defendant B had active property of KRW 000,000,000, and the market value was KRW 0,000,000 in Guro-gu Seoul Metropolitan Government, and KRW 0,000,000,00 in total. Meanwhile, each of the above items was set at the National Mortgage Bank as joint collateral, and each of the above items was liable for the return of small amount of lease deposit at each of the above buildings. Defendant B had been liable for the debt of KRW 00,000,00 in all of the financial institutions other than the above debt, and had been responsible for the debt of KRW 00,000,00 in total,00 in total, and was liable for the debt of KRW 00,000 in excess of KRW 0,00 in total,00 in manufacturing, etc., at the time of the transfer of property.

(c) The establishment of fraudulent act and the intention of deception;

Where the obligor’s act of reducing liability property causes or deepens the shortage of joint security for general creditors, whether the act constitutes a fraudulent act subject to revocation should be determined by comprehensively taking into account various circumstances revealed in the act, such as the obligor’s portion in the entire responsible property, degree of insolvency, legitimacy of the economic purpose of the act, reasonableness of the act in question, the duty or circumstance of the act in question, degree of awareness of the obligor and the beneficiary against the shortage of joint security, and whether the act ultimately constitutes an act detrimental to general creditors. Furthermore, in cases where a debtor in excess of liability transfers other claims that are not the original purpose of the obligation only to some of the creditors, other than the original purpose of the obligation, in light of the general standard of determination as seen supra, whether the act constitutes a fraudulent act ought to be determined by whether the act can ultimately be considered as an act detrimental to general creditors (see Supreme Court Decision 2011Da107818, Mar. 27, 2014).

In cases where a debtor provided his/her property to a certain creditor as payment in kind or as a collateral, barring any special circumstance, barring any special circumstance, this would directly harm the interests of other creditors and thus constitute a fraudulent act in relation to other creditors, and the same applies to cases where the property provided as payment in kind or as a collateral is not the sole property of the debtor, or is less than the amount of the claim (see Supreme Court Decision 2010Da18959, Jun. 24, 2010).

In full view of the fact that Defendant BB transferred the claim to FF to the Plaintiff on June 0, 2013, except for the clothing goods produced at the time of the transfer of the claim as of June 0, 2013, and the minutes related to the transfer of the claim do not know the price that Defendant BB would obtain from the transfer of the claim to FF, the Plaintiff asserted that it is the representative of the claim to Defendant BB, but the Plaintiff is excluded from the financial creditors such as Defendant EE, and the Plaintiff’s repayment of the debt by Defendant B was made as the sales price for the clothing. In full view of the fact that the transfer of the claim as of June 0, 2013, as of June 20, the transfer of the claim as of June 20, 2013, the Defendant B, who was in excess of the debt, is the representative of the claim group composed of the creditors, refers to the Plaintiff who actually transferred the inventory of Defendant BB to the Plaintiff, which constitutes a fraudulent act lacking joint security of the general creditors, and the Plaintiff’s bad faith is presumed.

(d) Revocation of fraudulent act and reinstatement;

1) Where a seizure of a claim concurrently leads to a concurrent deposit for repayment, deposit for execution, and a third-party obligor, even though the third-party obligor’s obligation ceases to exist, and the creditor of the third-party obligor is merely to acquire the right to claim for payment of deposit money, not to collect the claim in reality, and the effect of seizure continues to exist against the obligor’s right to claim for payment of deposit money. Therefore, restitution following the revocation of a fraudulent act shall be made by transferring the right to claim payment of deposit money to the obligee instead of monetary compensation (see Supreme Court Decision 2004Da9398, Jun. 25, 2004).

When a creditor exercises his/her right of revocation, in principle, he/she may not exercise his/her right of revocation in excess of his/her own claim amount (see, e.g., Supreme Court Decision 2000Da66416, Sept. 4, 2001). In cases where it is evident that another creditor would demand a distribution or where special circumstances exist, such as where the subject matter is indivisible, he/she may seek revocation beyond the claim amount of the cancelled creditor (see, e.g., Supreme Court Decision 97Da10864, Sept. 9

The fact that multiple creditors compete with the seizure of the instant deposit is recognized as above. As such, it is reasonable to view that Defendant EE, and Korea can seek the revocation of the entire assignment contract as of June 0, 2013, which is a fraudulent act, even beyond their claim amount.

2) Judgment on the Plaintiff’s assertion

The plaintiff should deduct expenses equivalent to KRW 0,00,000,00 in order for the plaintiff to incur the claim of the deposit of this case, or the debt of the defendant B, so that the expenses or the amount of the repayment should be borne by the plaintiff. Thus, the deposit of this case should be attributed to the plaintiff who is the obligor of the expenses necessary for the occurrence of the claim, and thus shall not be subject to restitution. However, even if the money paid by the plaintiff in relation to the defendant B exists in relation to the claim of this case, such expenses should be deducted first, so long as the assignment contract of this case is revoked, the plaintiff's assertion

D. Sub-committee

Therefore, the assignment of claims between the Plaintiff and Defendant BB on June 0, 2013 should be revoked as a fraudulent act, and due to its restitution, the Plaintiff expressed that FF would transfer its claim for payment of deposit money of KRW 000,000,000 deposited by the Seoul Southern District Court Decision 2000,000 to Defendant BB, and notified the fact of such transfer to the Republic of Korea as the debtor of the claim for payment.

4. Conclusion

If so, the plaintiff's claim against the defendant BB is justified, and the claim against the defendantCC andD and the main claim against the defendant EE, and the Republic of Korea is accepted within the above scope of recognition, and the remainder is dismissed as there is no reason, and the counterclaim against the plaintiff against the defendant EE, and Korea is decided as above.

Attached List

On June 0, 2013, Defendant BB transferred to the Plaintiff by Defendant BB, and Defendant BB supplied FF Co., Ltd. F Co., Ltd. (O-OF, Seoul, Seocho-gu OOdong Co., Ltd.) with future goods and completed the claim of KRW 0,00,000,000 among the claims to be acquired.