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(영문) 서울중앙지방법원 2013. 10. 10. 선고 2013가합518806 판결

공탁금출급청구권 확인소송으로 대출원리금은 충당하고 그 소송비용은 충당할 수 없음[국승]

Title

The principal and interest of interest of a lawsuit seeking confirmation of claim for withdrawal of deposit shall be appropriated, and such litigation costs shall not be appropriated.

Summary

The principal and interest of the loan was appropriated by a lawsuit seeking confirmation of the claim for payment of deposit, and the litigation cost related to the confirmation lawsuit is not of the nature to cover the deposit.

Cases

2013da 518806 Action to confirm the claim for payment of deposit money

Plaintiff

Korea

Defendant

1. Korea Deposit Insurance Corporation in Bankruptcy at AA Savings Bank;

2. GG Co., Ltd.

Conclusion of Pleadings

September 30, 2013

Imposition of Judgment

October 10, 2013

Text

1. The defendant AA Savings Bank 1. The bankruptcy trustee of the defendant AA Savings Bank 1. The OOO-OOOOOO, address: OOO-dong 50CC village 611 Dong 1801 (O-dong 5001) transferred the claim for rent to the D Heavy Industries Corporation, and notify the D Heavy Industries Corporation of this purport.

2.D Heavy Industries Corporation:

(a) Of the OO members deposited by Kubu District Court Yangyang-doon on November 18, 2011, No. 3808, 201;

B. On October 22, 2012, with respect to OOs deposited under gold No. 3406, gold 2012:

C. As to the OOO members deposited under gold No. 3905 in 2012, 26 November 2012, 2012:

(d) with respect to OOO members deposited by the District Court of Jung-gu on January 17, 2013 or by gold 197, 2013;

(e) with respect to OO members deposited under 607 gold 607, 2013, for the Government District Court and the High Court of the Republic of Korea on March 4, 2013:

(f) with respect to OO members deposited under 793 gold bullion 2013, 2013, the District Court and Yangyang Branch of the Government on March 20, 2013:

G. On May 8, 2013, as regards OOOs deposited under gold No. 1334, gold 2013, 2013

It is confirmed that the right to claim the return of each deposit is the plaintiff.

3. The costs of lawsuit shall be borne by the Defendants.

Cheong-gu Office

The same shall apply to the order.

Reasons

1. Facts of recognition;

(a) Default on national taxes by the Trade UnionB;

As of the filing date of the instant lawsuit, TradeB did not pay the national taxes of the OO members, such as value-added tax, and the Plaintiff has a national tax claim equivalent to this amount.

(b) Conclusion of credit transaction agreements and assignment of claims;

1) On September 15, 2010, AA Savings Bank Co., Ltd. (hereinafter “A Savings Bank”) concluded three credit transaction agreements with the NowonB, KimE, and LaborF and lent money.

See Table 3 of the Court Decision

2) On September 15, 2010, in order to secure obligations owed by KimE and LaborF with respect to AA Savings Bank in accordance with the above credit transaction agreement, Trade Union and LaborB transferred the following bonds (hereinafter referred to as “instant bonds”) to the DD Heavy Industries Corporation (hereinafter referred to as “DD Heavy Industries”), and on the same day, the notary public notified DD Heavy Industries of the said transfer by content-certified mail after obtaining a fixed date from the Chuncheon Joint Law Office.

See Table 4 see Court Decision 4

3) On October 11, 201, NoB entered into an agreement on the assignment of claims for rent claims under the construction equipment lease agreement for D Heavy Industries to Defendant GG Co., Ltd. (hereinafter “Defendant GG”), and notified it to D Heavy Industries on the same day.

4) On July 27, 2011, TradeB, LaborF, and KimE lost profits due to the overdue interest agreed upon. On July 20, 2011, AA Savings Bank held the principal and interest claim of OOOOO won total of principal and interest (on July 20, 201, damages for delay) OOOO won, and the principal and interest claim of OOOO won total of OOOOO won and OOOOO won with respect to NAF.

(c) Deposit of D Heavy Industries;

1) At the time of November 18, 201, D Heavy Industries: (a) was responsible for the payment of construction equipment rent for the unionB as of November 18, 201; (b) the notification of the assignment of claims to the bond transferee without specifying the amount of the assignment of claims on September 15, 201; (c) the notification of the attachment of claims by the Plaintiff (U.S.) made on August 9, 201 as the bond transferee; and (d) the notification of the assignment of claims to the Defendant GG as the bond transferee on October 11, 2011 on the ground that the notification of the assignment of claims is lawful, valid, or due to the existence of the notification of the assignment of claims and the competition of creditors, Article 487 of the Civil Act; (1) of the Civil Execution Act and Article 248(1) of the Civil Execution Act were stated as the underlying Act and subordinate statutes; and (b) the depositer was deposited as the KRW 13018 U.O.18 (O.S. 208).

2) For the foregoing reason, D Heavy Industries: (a) issued an obligation to pay the rent for construction equipment, which was additionally borne by the unionB; (b) issued an OOE (hereinafter “second deposit”); (c) issued an OOE (hereinafter “OOE”) under the 3406 FOE (Seoul District Court Decision 2012, Nov. 26, 2012; (d) issued an OOE (3905) under the 3905 FOE (3905), the 13rd Government District Court 197, 193, 193, 193, 2000, 203, 2013, 2013, 203, 203, 2013, 203, 2013, 203, 2013, 203, 2013, 203, 2013, 203, 2013, 2037, 2037,

(d) Bankruptcy of AA Savings Bank;

On March 27, 2012, AA Savings Bank was declared bankrupt on March 27, 2012 by the Chuncheon District Court 2012Hahap1, and on the same day, the Korea Deposit Insurance Corporation (hereinafter referred to as the "Defendant Trustee") of AA Savings Bank was appointed as the trustee in bankruptcy.

(e) Receiving deposits from Defendant bankruptcy trustee;

1) The Defendant bankruptcy trustee filed a lawsuit against the Plaintiff, Defendant GG, and LaborB seeking confirmation of the claim for payment of the first deposit as Seoul Central District Court 2012Gahap3314, and the Seoul Central District Court 2012Gahap21855 against the second deposit.

2) On June 15, 2012, the Defendant trustee in bankruptcy was sentenced to a full favorable judgment in Seoul Central District Court 2012Gahap21855, and the said judgment became final and conclusive as it is, and accordingly, received the total amount of the KRW OO and the KRW OO on July 20, 2012.

3) In addition, on August 31, 2012, in Seoul Central District Court 2012 Gohap3314, the defendant trustee in bankruptcy received the second deposit (including interest) from the AO on July 20, 2012, and applied it to Kim E-O and E-OF plus the interest on loans (if any, for late payment) from the POOE and E-OF, first, it should be appropriated to cover the remainder of OOE + OOE-OOwon in equal portions of the principal and interest on loans to the OF x 200 OE- 20 OE and 20 OE- 7 O's total amount of loans to the OE and 20 OE- 7 O's deposit interest on each of the above loans x 20 OE x 25 oE x 27 o0 x 2712 x 75 O's annual interest on each of the above loans O.

[Reasons for Recognition] Defendant Bankruptcy Trustee: Each entry in Gap evidence 1 to 8, Eul evidence 1 and 2 (including each number, if any)

Defendant

GGG: Confession (Article 150(3) and (1) of the Civil Procedure Act)

2. Determination

According to the above, the Defendant’s bankruptcy trustee received part of the first and second deposits and appropriated funds for the principal and interest of loan to the LaborF and KimE, and the Defendant’s GGG cannot assert the validity of the assignment of claims since the AAG bank agreed to transfer the above claims to the LaborB after receiving full repayment of the claims to the LaborF and KimE. Thus, barring any special circumstance, the claims for each of the loans to the Fund’s unionF and KimE were extinguished due to the appropriation of the above deposit. Accordingly, the Defendant’s bankruptcy trustee is obligated to transfer the claim for rent for the DG to the LaborB and notify the DG industry of the purport. Furthermore, as seen earlier, it is difficult for the Defendant’s GGG to assert the claim for rent payment against the DG, as it is not possible for the Defendant’s GGG to assert the validity of the assignment of claims.

As above, Defendant bankruptcy trustee recognized that part of the principal and interest of loans was appropriated by receiving part of the first and second deposits as above. However, the above Seoul Central District Court 2012Da3314, Seoul Central District Court 2012Gahap21855 claimed that the expenses related to the lawsuit seeking confirmation of the claim for payment of deposit should be first appropriated, and that if so calculated, there remains OOO members of the LaborF and KimE as to the principal. However, since the lawsuit costs are to be borne by the losing party (Article 98 of the Civil Procedure Act), the above lawsuit costs are to be borne by the losing party (Article 98 of the Civil Procedure Act), as they are to be borne by NoB, Plaintiff, and Defendant GGG and KimE, and there was no obligation for the first and second deposits and expenses being appropriated first of all at the time of receipt of the lawsuit costs (the bankruptcy trustee received the determination of the amount of the lawsuit costs for which the amount was determined by the Defendant). Accordingly, Defendant 1’s assertion is without merit.

Therefore, 154,159,387 won among the first deposit and the remaining D Heavy Industries' claims for the withdrawal of each of the instant deposit are against the Plaintiff, and the Defendant trustee in bankruptcy is obligated to transfer the claim for the rent for D Heavy Industries to Nowon and notify the D Heavy Industries to that effect.

3. Conclusion

If so, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.