2015 Gaz. 14058 Receiving money

A person shall be appointed.

A person shall be appointed.

July 14, 2015

August 11, 2015

1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall deliver to the plaintiff 60,214,00 won and a copy of the complaint of this case to the plaintiff from the next day.

It shall pay 20% interest per annum from the date of full payment.

1. Basic facts

A. On December 6, 2013, the Defendant: (a) a notary public drafted and issued to C a notarial deed of promissory notes worth KRW 61,414,00,000, as the law firm △△△△, No. 214.

B. On January 12, 2015, the Plaintiff entered into a contract with C on the assignment and takeover of claims under the said promissory note Notarial Deed, and notified the Defendant of the assignment of claims on January 15, 2015, and filed the instant lawsuit on January 19, 2015.

[Ground of Recognition] Unsatisfy, Gap evidence Nos. 1 and 2 (including branch numbers), and all arguments by the parties

A. The plaintiff's assertion

The plaintiff is a transferee of the claim under the aforesaid promissory note No. C. Since the defendant is obligated to repay the debt under the above notarial deed to the plaintiff, it is claimed for the payment of KRW 60,214,00 and the delay damages.

B. Defendant’s assertion

Since the acquisition of the Plaintiff’s claim is mainly aimed at a litigation trust, the lawsuit of this case shall be dismissed. Moreover, the Defendant received a decision of bankruptcy or exemption from liability, and the Plaintiff is obliged to participate in the bankruptcy procedure, and the Plaintiff cannot respond to the Plaintiff’s claim.

3. Whether the lawsuit in this case is lawful

A. In principle, the so-called voluntary lawsuit trust (the person in charge of voluntary lawsuit) that a person who is the subject of legal relationship grants a right to perform a lawsuit on his/her own rights to a third party with his/her intention is not permitted. If so permitted, a trust that only the attorney may become a legal representative (the main text of Article 80(1) of the Civil Procedure Act) is in conflict with the purport of prohibiting a trust of a lawsuit that is null and void (Article 7 of the Trust Act). On the other hand, whether the assignment of claims is a principal purpose shall be determined in light of all the circumstances such as the process and method of concluding the assignment of claims contract, interval between the transferor and the transferee after the transfer contract is concluded, and the status relationship between the transferor and the transferee, etc. (see Supreme Court Decision 2002Da2002).

6. See Supreme Court Decision 2000Da4210 Decided 6.

B. We examine the following circumstances, which are acknowledged by the purport of statement No. 6 and the entire pleadings of this case, namely, ① the Plaintiff is able to resolve the problem under the conditions that he would receive a kind of fee from C in his legal brief on June 12, 2015 and June 18, 2015. ② The Plaintiff is a person engaged in financial service business, ② the Plaintiff is a person engaged in the financial service business, and the court’s demand for explanation was not giving a proper response to the underlying act that the Plaintiff acquired from C, ③ was holding the title of a promissory note No. 3, and ④ The Plaintiff was not required to file a lawsuit, ④ the Plaintiff was a trust for debt collection purposes for the Plaintiff’s debt collection purposes. The Plaintiff cannot have a legitimate right to perform the lawsuit in the lawsuit of this case, and the above Defendant’s assertion is justified.

4. Conclusion

Therefore, the lawsuit of this case is unlawful, and it is decided as per Disposition by the assent of all participating Justices.

Judges Kim Gin-won