2017Da200597 Construction Price

Comprehensive Construction in Japan Co., Ltd.

APS Co., Ltd.

1. C

2. F;

3. K;

4. D;

5. E.

6. I

Seoul High Court Decision 2015Na2006935 Decided December 16, 2016

April 26, 2017

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Where there exists a seizure and collection order, only the claimant may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a lawsuit for performance against the seized claim (see, e.g., Supreme Court Decision 9Da23888, Apr. 11, 2000). Such circumstances are ex officio investigation and determination by the court ex officio, even if the parties do not assert it, and the same applies in cases where the circumstances, such as the standing to file a lawsuit, occur after the closing of argument at the fact-finding court, where the requirements for performance are incomplete (see, e.g., Supreme Court Decisions 89Nu1308, Oct. 10, 1989; 2001Da51510, Mar. 26, 2004).

2. According to the Defendants’ allegations in the grounds of appeal and the record, the following facts are revealed. ① The Plaintiff primarily sought payment of the construction cost against the Defendant with respect to the instant construction project, and conjunctively sought return of unjust enrichment. ② On January 6, 2017, Seoul Southern District Court Decision 2017TTTTT17, the date of closing the argument in the lower judgment, the National Bank Co., Ltd. served the Defendant and the third obligor with the amount of KRW 674,85,275, which was KRW 674,85,275, which was the date of closing the argument in the lower judgment, and the seized claim amount of KRW 2014,927 and Seoul Central District Court Decision 2015Na206935 (the first instance judgment and the lower judgment), the Plaintiff’s claim was served on the Defendant on the amount of the claim from the Defendant until it reaches the above claim amount, and the claim was served on the Defendant on the Seoul High Court 2017TTTTTT&27197, and 27147.

Meanwhile, in cases where the third party obligor indicated as the amount to be paid to the obligor according to the result of the judgment regarding the claim subject to seizure and collection order, the claim under the substantive law, which is the subject matter of the relevant lawsuit, is subject to the seizure and collection order (see Supreme Court Decision 2010Da40444, Apr. 28, 201).

3. Examining the foregoing facts in light of the legal principles as seen earlier, upon delivery of each of the above claims seizure and collection order to the Defendant, who is the garnishee, only the collection obligee was able to file a lawsuit for performance of the construction cost and the claim for return of unjust enrichment, and the Plaintiff lost the standing to file a lawsuit for performance. Accordingly, the lower court’s judgment, based on the premise that the Plaintiff had the standing to file a lawsuit for performance of the entire claim against the Defendant, may not be maintained.

4. Therefore, without examining the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jae-in