Plaintiff (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Defendant (Law Firm Si, Attorneys Yyoung-si, Counsel for defendant-appellant)

June 23, 2015

Seoul Eastern District Court Decision 2014Gahap102867 Decided October 17, 2014

1.The judgment of the first instance shall be modified as follows:

A. On October 11, 2013, Seoul Central District Court confirmed that the Plaintiff’s obligation against the Defendant based on an assignment order and assignment order and claim seizure and assignment order and assignment order do not exist in excess of the amount by the rate of 20% per annum from May 9, 2012 to August 14, 2013, against KRW 221,99,653.

B. The plaintiff's remaining main claims are dismissed.

2. Ten percent of the total litigation cost shall be borne by the Plaintiff, and ninety percent by the Defendant, respectively.

1. Purport of claim

In the first place, the Seoul Central District Court confirmed that the plaintiff's obligation against the defendant based on the claim attachment and assignment order on October 11, 2013 did not exist.

Preliminaryly, the Seoul High Court Decision 2012Na95945 decided on the return of unjust enrichment against the plaintiff by the non-party 2 is dismissed.

(The plaintiff filed only the above conjunctive claim at the first instance court, and added the main claim as above at the first instance court.

2. Purport of appeal

The judgment of the first instance shall be revoked. The judgment such as the preliminary claim shall be the same.

1. Basic facts

The reasons for this part are as follows: “A plaintiff” in Section 2 of the first instance judgment No. 3; “A claim to return unjust enrichment by the instant judgment” in Section 7 and Section 8; “The claim to return unjust enrichment by the instant judgment” in Section 21,99,653 are as follows: “the amount calculated by the rate of 20% per annum from May 9, 2012 to the date of full payment; and “the claim to return unjust enrichment by the instant judgment” in Sections 6 and 7 (hereinafter “the claim to return unjust enrichment by this case”); and “the claim to return unjust enrichment by the instant judgment”) shall be deleted from the first instance judgment after Section 12, except for the addition of “(the date of closing the argument at the appellate court of this case shall be May 22, 2013).” As such, it is cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The parties' assertion

A. The plaintiff's assertion

After May 22, 2013, which was the date of the closing of argument in the instant lawsuit, Nonparty 3 received an order of seizure and assignment of each claim against Nonparty 1’s return of unjust enrichment against the Plaintiff. Accordingly, the above claim was reverted to Nonparty 3. Therefore, the claim based on the instant judgment, which Nonparty 2 exercised against the Plaintiff on behalf of Nonparty 1, was extinguished.

Therefore, insofar as there is no claim based on the judgment of this case, which is the entire claim subject to the attachment and assignment order (hereinafter “instant attachment and assignment order”) issued by the Defendant on October 11, 2013, Seoul Central District Court 2013, the instant attachment and assignment order is null and void.

The plaintiff primarily sought confirmation of the non-existence of the plaintiff's obligation against the defendant based on the attachment and assignment order of this case, and sought non-performance of compulsory execution based on the judgment of this case as preliminary.

B. Defendant’s assertion

Where a creditor is notified of the status of a creditor in a subrogation lawsuit, in particular that the debtor becomes aware of the fact, or the debtor becomes aware of the fact, the status of the creditor is the same as that of the person to whom the seizure and collection order was issued. Accordingly, each assignment order issued by Nonparty 3 is null and void since Nonparty 1, the debtor in the process of the lawsuit of this case, which is the creditor subrogation lawsuit by Nonparty 2, becomes aware of the fact that Nonparty 2 exercises the creditor's right

In addition, inasmuch as res judicata has occurred in relation to a claim based on the judgment of this case against the plaintiff by the non-party 2 due to the judgment of this case, the claim by the non-party 2 is not affected by each assignment order received by the non-party 3.

Therefore, the Defendant’s claim based on the instant attachment and assignment order exists regardless of each assignment order received by Nonparty 3, and the executory power of the instant judgment should not be excluded.

3. Determination

(a) The validity of an assignment order made after a creditor subrogation lawsuit has been instituted;

As can be seen from the party’s assertion, the validity of each assignment order issued by Nonparty 3 should first be determined on the basis of the premise to determine the validity of the attachment and assignment order of this case, and in determining this, the validity of the assignment order, which was made after the creditor’s subrogation lawsuit, is the issue to be examined.

Therefore, considering the following circumstances, the assignment order cannot be deemed null and void by Article 229(5)1 of the Civil Execution Act, unless there are special circumstances, such as where the assignment order was made in collusion with the debtor and it can be viewed as being identical to the debtor's own act, even if, after the creditor's subrogation lawsuit was instituted, the debtor's assignment order was issued by another creditor after the debtor became aware of the subrogation from the subrogated creditor's subrogation creditor's notice, etc., in particular, since the creditor's subrogation lawsuit cannot be acknowledged as effective.

① There is no express statutory provision to regard the status of a creditor who exercises the subrogation right as the same as that of a creditor subject to a seizure and collection order. If a debtor does not exercise his/her subrogation right, the obligee’s subrogation right is a system that allows the creditor to exercise his/her subrogation right on behalf of the debtor in order to preserve his/her claim (Article 404(1) of the Civil Act), and its purpose is to secure the obligor’s responsible property. However, this institutional purpose itself does not lead to the dives of protecting the status of a subrogation creditor to the extent such as a seizure and collection right holder, but rather, it is not necessary to enhance the status of a subrogation creditor.

② More specifically, the fundamental institutional difference between the obligee’s subrogation right and the seizure and collection order is the typical means of compulsory execution to exclude the obligor, and the obligee’s right of subrogation gives the obligee the right of subrogation to secure it as the obligor’s responsible property once because of the obligor’s non-exercise of his/her right, and it does not require the obligee to exercise his/her right of subrogation until the stage of promoting the satisfaction of his/her claim with respect to the obligor’s responsible property secured in the future. In this regard, the subrogation obligee claims the performance of the obligor to the third obligor. Accordingly, in principle, the obligee’s right of subrogation, including the obligee’s subrogation, is part of the common security of the obligor (see Supreme Court Decision 66Da1149, Sept. 27, 196). In addition, even in cases where the obligor directly obtains the obligee’s right of subrogation from the third obligee to the third obligee, the subrogation obligee cannot directly claim the performance of the obligee’s obligation of subrogation from the third obligee to the third obligee (see Supreme Court Decision 140Da1414, supra.

(3) Of course, when the obligee exercises the obligee’s right based on the obligee’s subrogation right, it shall be notified to the obligor (Article 405(1) of the Civil Act). If the obligor receives notification or becomes aware of the fact of exercising his obligee’s right as such, even if he disposes of his right (see, e.g., Supreme Court Decision 405(2) of the Civil Act; Supreme Court Decision 2006Da85921, Jun. 28, 2007). However, even if the obligor cannot oppose the obligee by disposing of his right under certain conditions, it is difficult to view that the obligor has the same effect as the issuance of the seizure and collection order for the obligor’s subrogated claim. For instance, it is difficult for the obligee to be permitted to exercise the obligee’s right of subrogation even if the obligor issued the seizure and collection order for the seized claim, and it is identical to the case where the obligee becomes aware that the obligee exercised the obligee’s right of subrogation, i.e., the obligee cannot exercise the obligee’s right of subrogation.

④ Article 405(2) of the Civil Act only provides that an obligor cannot set up against a subrogated obligee by his/her own disposal of his/her own rights, and its purport is to prevent an obligor who did not exercise his/her rights until the time the subrogated obligee begins to exercise his/her rights once based on the obligee’s subrogation right, from exercising his/her rights, since it would interfere with the exercise of subrogation rights by the subrogated obligee (see, e.g., Supreme Court en banc Decision 2011Da87235, May 17, 2012). In light of its language and purport, it is difficult to interpret that a non-debtor’s disposal of the obligor’s rights based on his/her own substantive law and procedural power is prohibited from being carried out by another obligee based on the obligor’s disposal of the obligor’s rights. Since, after the obligee’s exercise of subrogation right, the obligor’s disposal of the obligee’s rights does not constitute an “debtor’s disposal of the obligor’s rights,” and even though the obligor’s disposal of the obligee’s rights may not be secured by another obligee’s disposal order under the Civil Act.

⑤ In light of the purpose of the obligee’s subrogation right of securing the obligor’s responsible property as seen earlier, there is no need to excessively protect the obligor’s subrogated obligee beyond this purpose, and there is no ground that the obligor’s status as an interested party becomes worse or bad compared to the case in which the obligor exercises his/her own rights. In other words, where the obligor exercises his/her own rights, the obligee may not bring more than the obligor’s right to exercise his/her own rights, and the third obligor may not put any limitation on his/her rights, such as a defense, if the obligor exercises his/her own rights due to the exercise of the obligee’s right of subrogation. If the obligor exercises his/her own rights, there was no limitation on the exercise of the obligee’s right of subrogation, but the other obligee cannot exercise his/her rights pursuant to the assignment order merely on the ground that the obligee’s exercise of the obligee’s right of subrogation, which would result in granting the obligor’s right to exercise the obligee’s right of subrogation to the obligor. In addition, even if the obligor’s obligee has lost his/her right of subrogation, the assignment order cannot become void.

B. Specific determination on the instant case

Of the claim for return of unjust enrichment against the plaintiff by the non-party 1, the non-party 3 received an order in full as to KRW 230,000,000 and KRW 250,00,000 from among the claim for return of unjust enrichment against the plaintiff by the non-party 1. The above assignment order was served on the plaintiff who is the third debtor on August 14, 2013 and August 22, 2013, which is the date of the closing of argument in the appellate trial of this case. According to the evidence No. 1, the non-party 1 could be recognized as having attended the first instance court of this case and testified, and at the latest, the non-party 1 was aware of the fact that the non-party 1 exercised the right of subrogation of the creditor. Thus, each of the above assignment order of the non-party 3 was instituted against the creditor, which is the subrogation lawsuit of this case, and was made after the creditor's exercise of the right of subrogation. However, as seen above, the assignment order of the non-party 1 cannot be acknowledged.

Therefore, the above assignment order of Nonparty 3 was served and confirmed on August 14, 2013 and August 22, 2013 to the Plaintiff, who is each third debtor, and thus, KRW 221,99,653 of Nonparty 1’s claim for return of unjust enrichment against the Plaintiff was entirely handed down to Nonparty 3, and accordingly, Nonparty 2’s claim for the payment of the above claim for return of unjust enrichment against the Plaintiff by subrogation of Nonparty 1 also extinguished according to the judgment of this case.

Furthermore, with respect to the above claim for delay damages of KRW 221,99,653 as to the above claim for restitution of unjust enrichment, the health expenses and the validity of the assignment order shall naturally extend to the damages for delay arising from the day after the assignment order was delivered to the third debtor, that is, the date following the day after the assignment order was delivered to the third debtor. Thus, the damages for delay of KRW 221,99,653 as of August 15, 2013 as of August 15, 2013, the first assignment order of Nonparty 3 was delivered to the plaintiff, shall also be deemed to have been fully paid to Nonparty 3. Thus, the claim corresponding to the damages for delay

Therefore, even if the Defendant received an order of seizure and assignment as to KRW 220,00,00 among the claims against Nonparty 2 based on the instant judgment, namely, “21,99,653 won and the amount at the rate of KRW 20% per annum from May 9, 2012 to the date of complete payment,” the Defendant’s order of seizure and assignment as to the claims against the Plaintiff by Nonparty 2, as seen earlier, was extinguished by the seizure and assignment order of Nonparty 3, which had already been completed on August 15, 2013. As such, the seizure and assignment order of this case is valid only within the limit of 21,99,653 won among the claims of Nonparty 2 based on the instant judgment, and damages for delay from August 15, 2013, within the limit of 200,000 per annum from May 9, 2012 to August 14, 2013.

The defendant asserts that the above claim against the plaintiff of the plaintiff of the non-party 2 is not extinguished notwithstanding the above seizure and assignment order which was received by the non-party 3 due to the confirmation of the judgment of this case. However, since the non-party 3 received the above seizure and assignment order after the date of the appellate brief of the lawsuit of this case, the whole part of the claim against the non-party 1 does not violate the res judicata effect of the judgment of this case, and even if the judgment of this case became final and conclusive, the above seizure and assignment order of the non-party 3 was made before the actual non-party 2 received the claim from the plaintiff pursuant to the judgment of this case, so long as the above seizure and assignment order of the non-party 3 did not change within the validity of each seizure and assignment order of the above non-party 3, within the scope of the above seizure and assignment order of the non-party 3's claims against the plaintiff (the subrogated creditor of this case before the judgment of this case became final and conclusive, it is difficult to accept the defendant's assertion that this position is retroactively granted to the non-party 2 of this case.

C. Sub-committee

Therefore, the Plaintiff’s obligation against the Defendant based on the instant attachment and assignment order does not exceed the amount equivalent to 20% per annum from May 9, 2012 to August 14, 2013, and as long as the Defendant contests this, the Plaintiff’s primary claim is reasonable within the scope of the above recognition (as long as the Plaintiff’s primary claim is partly accepted, no judgment is made as to the conjunctive claim).

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remainder shall be dismissed, and the judgment of the court of first instance shall be modified in accordance with the plaintiff's amendment to the claim in the trial court as above, and it is so decided as per Disposition.

Judges Park Jung-hwa (Presiding Judge)

(1) Article 229 (Method of Encashment of Monetary Claim) (5) In cases where another creditor has seized, seized, or demanded a distribution of the monetary claim until an assignment order is served on the garnishee, the assignment order shall not have the effect.