[공탁금출급청구권확인청구사건][하집1987(3),424]
In a case where a notary public has sent a notice of assignment by registered mail with the certification of the fixed date of the joint law office, whether it may be deemed a notice by the certificate with the fixed date.
The notification or acceptance by a document with a certified fixed date under Article 450 (2) of the Civil Code refers to the act of notification or acceptance itself by a document with a certified fixed date under Article 450 (2) of the Civil Code. Thus, in cases where the notification of assignment itself is not a document with a certified fixed date but a notary public has sent it by registered mail with a certified fixed date of a joint law office, it cannot be deemed that the notification itself was made by a certified fixed date.
Article 450(2) of the Civil Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 8555, Dec. 9, 1986) (Law No. 7935, Feb. 11, 1986) (Law No. 7735, Dec. 9, 1986)
HaHa Construction Company
Korea National Housing Corporation and one other.
1. The plaintiff's lawsuit of this case against defendant Korea National Housing Corporation is dismissed.
2. The plaintiff's lawsuit against the defendant Lee Dong-dong is dismissed.
3. Litigation costs shall be borne by the plaintiff.
It is confirmed that the right to claim for payment of the attached Form deposit is the plaintiff.
Litigation costs are assessed against the Defendants.
1. Facts constituting the premise for determination
In full view of Gap evidence Nos. 2-3 (mail Receipt), Gap evidence Nos. 5 (Determination), Gap evidence No. 6 (Notification), Gap evidence No. 9 (Service Certification), Gap evidence No. 11, Eul evidence No. 12, Eul evidence No. 6-1, Eul evidence No. 3-2 (Certification of Pleadings), and Eul evidence No. 9-1, 2 (Certification of Delivery) between the defendant's Korea Housing Corporation and the defendant's office No. 2-1, 2-1, 2-1, 2 (Delivery of Claim No. 9), and the purport of the above witness's testimony, the defendant's order of return No. 1, 29-1, 3-1, 20-1, 9-1, 20-1, 9-2, 9-1, 20-1, 9-2, 9-2, 9-1, 20-1, 9-2, 1,000-1,000
2. Determination on the main defense of Defendant Korea National Housing Corporation
The defendant Korea National Housing Corporation asserted that the above defendant's claim for payment of the deposit money is against the plaintiff in the above factual relations, but the above defendant's claim for payment of the deposit money has reached the lawsuit of this case to confirm it. However, as seen above, the above defendant exempted the above defendant from the liability by depositing the deposit amount of KRW 20,900,250 for the repayment of the deposit money for the repayment of the deposit money for the non-party's construction, and as long as the above obligation is exempted, there is no ground for dispute as to who is the right to receive the deposit money. Thus, the plaintiff's claim for confirmation of this case against the above defendant is unlawful.
On the other hand, in a case where there is a person claiming the assignment of a claim regarding the same claim as in this case and a third party claiming that the assignment of claim was entirely received, the above assignment of claim can be set up against all creditors with notification or consent by the certificate with the fixed date stipulated in Article 450(2) of the Civil Act before the above assignment order is served on the garnishee. As seen above, in a case where the notification of the assignment of claim itself is not a document with the fixed date, and in a case where the notification of the transfer is certified by the joint law office with the certified fixed date and the delivery is made by registered mail, the above notification is not clearly known whether it constitutes a notification by the certificate with the fixed date with the above legal office. In such a case, it is reasonable to view that the above defendant's deposit is valid pursuant to the latter part of Article 487 of the Civil Act, and the above defendant is exempted from the obligation to return the deposit, and as long as the above obligation is discharged, there is no ground to dispute against any above defendant and there is no interest in the lawsuit against the defendant.
3. Determination as to the claim against the defendant Lee Dong-dong
The plaintiff is the cause of the claim in this case. As seen above, the plaintiff takes over the claim for the return of the above warranty bond from the construction of the plaintiff in East Asia, and sent it to the defendant Korea National Housing Corporation after obtaining the certification of the joint law office's confirmation date to the public, thereby satisfying all the requisite for setting up against the third party as stipulated in Article 450 of the Civil Code. Thus, even if the defendant Lee Dong-dong received the attachment and assignment order as to the above claim, it is limited to the non-existent claim, and thus the above claim for the payment of the deposit is null and void. Thus, the above defendant's objection is asserted, and the defendant cannot be viewed as satisfying the requisite for setting up against the above argument, and thus, the defendant cannot set up against the above defendant.
On the other hand, in order to oppose the above defendant, who is a third party claiming that the plaintiff received the assignment of claim regarding the same claim as above, as the above, prior to the service of the assignment order to the garnishee, the notification or consent of the assignment of claim by the certificate with the fixed date under Article 450 (2) of the Civil Act shall be required, and the notification or consent by the certificate with the fixed date shall be made by the notification or consent act itself by the document with the fixed date. Thus, in case where the notification of the assignment of claim is made by registered mail without using the certificate with the fixed date of the joint law office as in this case, it cannot be deemed that the notification itself was made by the certificate with the fixed date of the transfer ( there is no material to deem that the fixed date and the notification of the assignment of claim were made as a single act) and there is no evidence to support that the above assignment order had been notified or consented by the certificate with the fixed date prior to the service of the garnishee to the defendant National Housing Corporation, the garnishee, and therefore, the plaintiff's above assertion is groundless.
4. Conclusion
Therefore, the plaintiff's lawsuit against the defendant Korea National Housing Corporation is dismissed as it is unlawful, and the plaintiff's claim against the defendant Lee Dong-dong is dismissed as it is without merit, and all costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.
Judges Kim Shin (Presiding Judge)