[1] Where the appellate court maintains the remainder of the cited amount of the first instance court that the defendant did not appeal as a result of limiting the scope of dissatisfaction to part of the cited amount of the first instance court as to the claim cited by the first instance court, whether the existence or scope of the obligation to perform as to the remainder of the cited amount of the first instance court that the defendant did not appeal can be deemed as a dispute (negative)

[2] Where only the defendant appealed against the judgment of the court of first instance which partly admitted one claim and limited the scope of dissatisfaction to part of the cited amount of the claim, whether the defendant can file an appeal as to the part not belonging to the adjudication scope of the appellate court due to the failure to file an appeal (negative)

[3] The legal nature of the acceptance of the assignment of claims without reserving an objection under Article 451(1) of the Civil Act (=Notice of concept), and whether the acceptance can be made by an agent (affirmative)

[4] Where bonds are transferred twice, the criteria for determining the friendship between the transferee and transferee

[1] In a case where only the defendant appealed the claim cited by the court of first instance, and the scope of objection is limited to a part of the cited amount of the court of first instance. Accordingly, in a case where the appellate court maintains the remainder of the cited amount of the court of first instance that was not appealed by the defendant, it cannot be deemed that there was a dispute as to the existence or scope of an obligation to perform as to the remainder of the cited amount of the court of first instance that was not appealed by the defendant. Thus, it is reasonable to apply the statutory interest rate under Article 3(1)

[2] In a case where only the defendant appealed against the judgment of the court of first instance which partly admitted a claim, and limited the scope of objection to the claim to part of the cited amount, the entire claim, which was the subject of the judgment of the court of first instance, is indivisible, but the scope of the judgment of the appellate court is limited to the scope of appeal filed by the defendant, and the part which does not fall within the scope of the judgment of the appellate court due to the defendant's failure to file an appeal, cannot be the subject of appeal because the appellate court rendered a judgment. Thus, the defendant cannot file

[3] The main sentence of Article 451(1) of the Civil Act provides, “When an obligor has given his consent under the preceding Article without reservation, it shall not be set up against the assignee on the grounds that it can be set up against the assignor.” This is a provision for the protection of the assignee and the safety of the transaction by granting a public trust in the fact that the obligor has given his consent. Here, “approval” constitutes notification of the so-called concept because the obligor expresses his knowledge of the fact of assignment of claims, and the agent may also give such consent.

[4] Where bonds are transferred double, the order between the assignee shall be determined by the date of receipt of the notification of transfer with the fixed date or after the date of acceptance with the fixed date with the consent of the obligor, and the assignee of the transfer with the notification or consent without using the certificate with the fixed date may not oppose the assignee of the transfer with the notice or consent by the certificate with the fixed date.

[1] Article 3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings / [2] Articles 415 and 422 of the Civil Procedure Act / [3] Article 451 (1) of the Civil Act / [4] Article 450

[2] Supreme Court Decision 2001Da63131 decided Feb. 5, 2002 (Gong2002Sang, 637), Supreme Court Decision 2007Da22514, 22521 decided Oct. 29, 2009 (Gong2009Ha, 1968) / [3] Supreme Court Decision 96Da22648 decided May 30, 197 (Gong197Ha, 200) / [4] Supreme Court Decision 71Da2697 decided Jan. 31, 197 (No20-1, 68) (Gong23, Apr. 26, 1994; Gong194, 1959)

Plaintiff 1

Plaintiff 2 and one other (Attorney Choi Sung-sung, Counsel for the plaintiff-appellant)

Defendant (Attorney Han-hoon et al., Counsel for defendant-appellant)

Daesung Co., Ltd.

Busan High Court (Capwon) Decision 2010Na3271 decided August 18, 2011

1. Of the lower judgment, the part of the lower judgment against Plaintiff 1, which corresponds to the amount ordered to be additionally paid below, shall be reversed. The Defendant shall pay to Plaintiff 1 319,454,02 the amount equivalent to 15% per annum from September 10, 201 to August 18, 201.

2. The part of the judgment below against the defendant as to the claims of plaintiffs 2 and 3 is reversed, and that part of the case is remanded to Busan High Court.

3. The defendant's appeal on the part of KRW 319,454,02 as to the principal against the plaintiff 1 is dismissed, and the remaining appeals are dismissed.

4. The costs of appeal between the plaintiff 1 and the defendant are assessed against the defendant.

The grounds of appeal are examined.

1. As to Plaintiff 1’s ground of appeal

A. Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases Act”) provides that “when an obligor deems it appropriate to dispute over the existence or scope of the obligation” means when there are reasonable grounds for the obligor’s assertion as to the existence or scope of the obligation. Thus, the issue of whether such a dispute is inappropriate is related to the fact-finding and evaluation of the court concerning the case in question (see Supreme Court Decisions 9Da20155, Feb. 25, 2000; 2006Da61567, Nov. 13, 2008, etc.). However, in a case where the claim cited by the first instance court only appealed, and the appellate court maintains the remainder of the cited amount of the first instance court that the Defendant did not appeal, as to the remainder of the cited amount of the first instance court that the Defendant did not appeal, the legal interest rate of the first instance court cannot be deemed as applicable to the scope of the obligation under Article 3(1) of the Special Cases Act.

B. Review of the reasoning of the first instance judgment and the reasoning of the lower judgment and the record reveals the following facts.

(1) The first instance court determined that the Defendant is obligated to pay the Plaintiff 1 the amount of KRW 360,00,000 and the delay damages at each rate of 5% per annum under the Civil Act and 20% per annum under the Special Act from the next day to the date of full payment, which is the date of August 1, 2009, which is the day following the date of the payment of the construction payment in this case, to the day of September 9, 2010, which is deemed reasonable for the Defendant to resist the scope of its obligation to perform.

(2) As to this, the Defendant appealed and limited the part of the judgment of the first instance ordering the Defendant to pay exceeding KRW 319,454,022 to the Plaintiff 1.

(3) As a result of the hearing, the lower court determined that the Defendant is obligated to pay the Plaintiff 1 with KRW 294,109,007 and delay damages therefor, but the Defendant appealed only for the part ordering the Plaintiff 1 to pay the Defendant in excess of KRW 319,454,02 among the judgment of the first instance. As such, the Defendant is obligated to pay damages for delay at each rate of KRW 319,454,02 and 20% per annum under the Civil Act from August 1, 2009 to August 18, 2011, which is the date of the judgment of the lower court that deemed reasonable for the Defendant to resist the scope of his/her performance obligation.

C. However, in light of the legal principles as seen earlier, it is difficult to accept the above determination by the lower court. The Defendant did not appeal the part on the principal amount of KRW 319,454,02, which was accepted by the first instance court. Thus, from September 10, 2010 to September 10, 2010, the Defendant shall be deemed to have a duty to pay to Plaintiff 1 the amount of KRW 319,454,02 plus damages for delay at a rate of 20% per annum as stipulated in the Act on Special Cases.

Nevertheless, the lower court, contrary to this, ordered the Defendant to pay damages for delay by applying the rate of 20% per annum 5% per annum under the Civil Act during the above period, on the grounds that the scope of the Defendant’s obligation to perform the principal amounting to KRW 319,454,02, is reasonable to resist even during the period from the day following the date of the first instance judgment to the date of the pronouncement of the lower judgment. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation and application of Article 3 of the Act on Special Cases, thereby adversely affecting the conclusion of the judgment

2. As to the Defendant’s ground of appeal

A. The part on the plaintiff 1

(1) In a case where only the defendant appealed against the judgment of the court of first instance that partly admitted a claim, and the scope of objection is limited to a part of the cited amount of the claim, the entire claim, which was the object of the judgment of the court of first instance, is indivisible, but the scope of the judgment of the court of first instance is limited to the scope of appeal filed by the defendant, and the part that does not fall within the scope of the judgment of the appellate court as the defendant did not appeal is not subject to the judgment of the appellate court since the judgment of the appellate court was not rendered (see, e.g., Supreme Court Decisions 2001Da63131, Feb. 5, 2002; 2007Da22514, 22521, Oct. 29, 2009).

(2) As seen earlier, the Defendant appealed from the judgment of the first instance only to the part ordering the Defendant to pay exceeding KRW 319,454,022 to the Plaintiff 1. While the Defendant is obligated to pay KRW 294,109,007 to the Plaintiff 1 and delay damages therefor, the lower court determined that the Defendant among the judgment of the first instance, was liable to pay KRW 319,454,02 and delay damages therefrom on the ground that the Defendant appealed only to the part ordering payment exceeding KRW 319,454,02 to the Plaintiff 1.

Examining in light of the legal principles as seen earlier, the part concerning the principal amount of KRW 319,454,02 among Plaintiff 1’s claims was not appealed against the judgment of the first instance court that cited by the Defendant, and this part is not within the scope of the judgment of the lower court, and it cannot be the subject of appeal as the lower court did not render a judgment. Therefore, the Defendant’s appeal

Meanwhile, the part on the claim for damages for delay against the principal amounting to KRW 319,454,02 falls under the scope of appeal filed by the Defendant against the judgment of the court of first instance. Thus, the Defendant may file an appeal against the lost part. However, the Defendant asserted only to the effect that the Defendant erred in calculating damages for delay on the ground that the recognition of the principal amounting to KRW 319,454,02, which cannot be asserted any longer is determined at the same time as the judgment of the court of first instance, and the Defendant did not assert any other grounds for appeal.

B. The part on plaintiffs 2 and 3

(1) M&D by misapprehending the legal principles on Nonparty 1’s consent to the assignment of claims

(A) Article 451(1) of the Civil Act provides that “When an obligor has given his consent under the preceding Article without reservation, it shall not be set up against the assignee on the grounds that it could be set up against the assignor.” This is a provision for the protection of the assignee and the safety of the transaction by granting a public trust in the fact that the obligor has given his consent. Here, “approval” constitutes notification of the so-called concept as an obligor’s expression of awareness about the assignment of claims, and an agent may also give such consent (see, e.g., Supreme Court Decision 96Da22648, May 30, 197).

(B) Comprehensively taking into account the evidence of its employment, the lower court concluded a construction contract with the Korea Creative Construction Corporation (hereinafter “Nonindicted Company”) on August 22, 2007, with respect to the construction work for Kimhae Hospital Construction (hereinafter “the instant construction work”), and requested the Nonparty Company to consult with Nonparty 1, who is the Defendant’s imprisonment for the administrative procedure and fund enforcement related to the instant construction work. On November 4, 2008, the Nonparty Company accepted the Plaintiff 1’s claim payment of KRW 360,000,000, and KRW 260,000,000,000, and KRW 100,000,000,000, and KRW 49,0000,000,000, and KRW 1000,000,000,000, and KRW 700,000,000,000 and KRW 70,000,000 (hereinafter “the instant construction work payment”).

The lower court determined to the effect that, inasmuch as Nonparty 1’s consent to the transfer of the instant claim for the payment of the construction cost, which is a matter of the payment of the construction cost, is legally authorized to act for the Defendant, Nonparty 1’s consent to the transfer of the said claim is effective against the Defendant, and there is no evidence to support the fact that Nonparty 1 suspended objection regarding the deduction of the amount of the claim for the repair of defects against the non-party company at the time of that consent, the Defendant cannot defend that the amount of the claim equivalent to the repair cost against the non-party company should

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the subject and validity of the consent, or in violation of the principle of free evaluation of evidence against logical and empirical rules.

(2) M&D of the legal principles as to the standards for determining friendlyness of the requirements for setting up against the assignment of claims

(A) Where bonds are transferred double, the order between the assignee shall be determined by the date of receipt of the notice of transfer with the fixed date or after the date of acceptance with the fixed date with the date of acceptance of the obligor. The assignee of the transfer with the notice or consent without using the certificate with the fixed date may not oppose the assignee of the transfer with the notice or consent by the certificate with the fixed date (see Supreme Court Decisions 71Da2697, Jan. 31, 197; 93Da2423, Apr. 26, 1994, etc.).

(B) According to the reasoning of the judgment below, the non-party company did not give notice or consent by a certificate with a fixed date at the time when the non-party company delivered to the non-party 1 a document arranging the amount of claims transferred under the bonds transfer agreement of this case on November 7, 2008, and consented to the payment of the construction price of this case in accordance with the document's written statement, and thereafter, it can be seen that the mail certifying the content of each of the claims for the construction price of this case against the plaintiffs, IMs, 2, and Ho Steel individually delivered to the defendant.

Examining the above facts in light of the legal principles as seen earlier, the right to each of the instant construction price claims between the Plaintiffs and IMs, Nonparty 2, and Daeho Steel shall be determined by the content-certified mail, which is a document with the above fixed date, after the date and time they delivered to the Defendant, and may not be determined by the notification or consent of November 7, 2008, which was not based on the certificate with the fixed date.

Nevertheless, the court below held otherwise on the premise that it should be determined by the debtor's awareness of the transfer of claims, not by the prior decision of the fixed date attached to the notification or consent, but by the prior decision of the debtor's awareness of the transfer of claims. On November 7, 2008, the defendant recognized the transfer of part of the claim for the construction payment of this case to the non-party 1 who was represented by the defendant on his behalf of the defendant at the same time when the non-party 1 delivered a document in which the amount of claims he acquired by the plaintiffs and IMS, non-party 2, and Dae Steel were delivered. Thus, the court below determined that the legal status is equal due to the lack of heat between the plaintiffs and IMS, non-party 2, and Dae Steel. In so determining, the court below erred by misapprehending the legal principles on the criteria for determining the objection against the claim for the transfer of claims, which affected the conclusion of the judgment

3. Conclusion

Therefore, by accepting Plaintiff 1’s final appeal, the part against Plaintiff 1, who is equivalent to the damages for delay in accordance with the rate of 15% per annum (20% per annum as prescribed by the Special Act - 5% per annum as prescribed by the Civil Act) from September 10, 201 to August 18, 2011, which is the day following the first instance judgment on the amount to be paid additionally by the Defendant among the judgment below, namely, the amount to be paid additionally by the Defendant, 319,454,02, among the judgment below, shall be reversed, and as to the reversed portion, it is sufficient for the Supreme Court to directly render a judgment on the reversal portion.

In addition, the part of the lower judgment against the Defendant regarding the claims by Plaintiffs 2 and 3 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal as to the principal amount of KRW 319,454,02 against Plaintiff 1 is dismissed, the remainder of the appeal is dismissed, and the costs of appeal between Plaintiff 1 and the Defendant are assessed against the losing party.

Therefore, this decision is delivered with the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)