A third party's bad faith or gross negligence shall be asserted and proved by a person who intends to oppose the assignee of a special agreement prohibiting the assignment of claims.

A third party's bad faith or gross negligence shall be asserted and proved by a person who intends to oppose the assignee of a special agreement prohibiting the assignment of claims.

2014 Confirmation of withdrawal of deposit money 118796

AA, BB, CCC

Republic of Korea and 17

2015.15

2015.08.26

1. On January 4, 2012, DD Co., Ltd. confirmed that the right to claim the payment of deposit amount of KRW 21,393,805, out of KRW 297,00,000 deposited by OOOO of the District Court, the right to claim the payment of deposit amount of KRW 24,117,540, the right to claim the payment of deposit amount of KRW 50,000,00 to the Plaintiff BB, and the right to claim the payment of deposit amount of KRW 50,000,000 to the Plaintiff CCC.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. 피고 주식회사 EEE, FFF, TTT, GGG, HHH, III, JJJ, KKK, LLL, MMM, 주식회사 NNN, PPP, QQQ, RRR, SSS에 대한 청구에 관한 판단

(a) Details of the request;

1) On September 6, 2010, Defendant EE (hereinafter “Defendant EE”) entered into a standard contract for the manufacture of construction materials with DD Co., Ltd. (hereinafter “EE”), and around January 4, 2012, Defendant EE Co., Ltd. (hereinafter “Defendant EE”) had a claim for the purchase of materials amounting to KRW 297,00,000 for DD Co., Ltd. (hereinafter “instant claim”).

2) On July 18, 2011, Defendant EE entered into a contract to transfer KRW 21,395,805 out of the instant bonds to Plaintiff AA and Plaintiff AA, a corporation. On July 18, 2011, Defendant EE notified the transfer of the instant bonds to DD Co., Ltd by a certificate with a certified fixed date, and the notification reached DD Co., Ltd. on July 20, 201.

3) On August 3, 2011, Defendant EE entered into a contract with Plaintiff BB and Plaintiff BB to transfer KRW 24,117,540 of the instant claims, and on August 3, 2011, Defendant EE notified DD Co., Ltd of the transfer of claims by means of a certificate with a fixed date, and the notification reached DD Co., Ltd. on August 4, 201.

4) On August 3, 2011, Defendant EE entered into a contract with Plaintiff CCC and Plaintiff CCC to transfer KRW 50,000,000 of the instant claims, and on August 4, 2011, Defendant EE notified DD Co., Ltd of the transfer of claims by means of a certificate with a fixed date, and the notification was reached to DD Co., Ltd on August 4, 201.

5) On January 4, 2012, DDR deposited KRW 297,00,000 with the OOOOO of the District Court as Defendant EE and the Plaintiffs pursuant to the latter part of Article 487 of the Civil Act and Article 248(1) of the Civil Execution Act on the ground that there is dispute over the validity of the assignment of claims, and that the notification of the transfer of claims, notification of attachment, seizure, seizure and collection of claims, provisional seizure, transfer of claims to the original attachment, seizure and collection order, etc. were concurrent. (hereinafter “instant deposit”).

6) 피고 FFF, TTT, GGG, MMM, RRR, UUU(선정당사자)는 이 사건 채권 중 일부를 가압류하였고, 대한민국은 이 사건 채권 중 일부를 압류하였으며, 피고 HHH, III, JJJ, KKK, LLL, 주식회사 NNN, PPP, QQQ, SSS는 이 사건 채권 중 일부에 관하여 채권압류 및 추심명령을 받았고, 피고 VVV, 주식회사 WWW은 이 사건 채권 중 일부를 가압류한 후 가압류를 본압류로 이전하는 채권압류 및 추심명령을 받았다.

7) The Plaintiffs, as the creditors of Defendant EE, received part of the instant claims against Defendant EE against Defendant EE, and lawfully notified transfer. The Defendants’ decision of seizure or provisional seizure against most of the Defendants, should have been made after the notice of the assignment of claims against the Plaintiffs reached DD Co., Ltd., so it is reasonable to deem that the right to claim payment of deposited money of KRW 21,393,80,000, out of KRW 297,000,000, the right to claim payment of deposited money of KRW 24,117,540, KRW 24,117,540, the right to claim payment of deposited money of KRW 50,00,00 to Plaintiff BB, and the right to claim payment of deposited money of KRW 50,00.

(b) Judgment on deemed confession (Article 208 (3) 2 of the Civil Procedure Act);

2. Determination as to the claim against Defendant VV, WW, and Korea

A. Determination on the cause of the claim

(i) the basic facts

A) On September 6, 2010, Defendant EE entered into a standard contract for the consignment of the manufacture of construction materials with DD Co., Ltd. (Packing aggregate production) and on January 4, 2012, Defendant EE had a claim for the material price of KRW 297,000,000 against DD Co.

B) On July 18, 2011, Defendant EE entered into a contract to transfer KRW 21,395,805 out of the instant claims to Plaintiff AA and Plaintiff AA, and on July 18, 201, Defendant EE notified DD Co., Ltd of the transfer of claims by means of a certificate with a certified fixed date, and the notification was reached to DD Co., Ltd. on July 20, 201.

C) On August 3, 2011, Defendant EE Co., Ltd. entered into a contract with Plaintiff BB and Plaintiff BB to transfer KRW 24,117,540 out of the instant bonds. On August 3, 2011, Defendant EE notified DD Co., Ltd of the fact of transfer by means of a certificate with a fixed date, and the notification reached DD Co., Ltd. on August 4, 201.

D) On August 3, 2011, Defendant EE Co., Ltd. entered into a contract with Plaintiff CCC and Plaintiff CCC to transfer KRW 50,000,000 of the instant claims, and on August 4, 2011, notified DD Co., Ltd of the transfer of claims by means of a certificate with a fixed date, and the notification reached DD Co., Ltd on August 4, 201.

E) On January 4, 2012, DD Co., Ltd. has a dispute over the validity of the assignment of claims on the ground that provisional attachment, notification of the transfer of claims, notification of attachment, seizure and collection of claims, transfer of claims to provisional attachment to the original attachment and collection order, etc., DD Co., Ltd. combined deposit amounting to KRW 297,00,000 under the OOOOO of the OOO of the District Court with Defendant EE and the Plaintiffs pursuant to the latter part of Article 487 of the Civil Act and Article 248(1) of the Civil Execution Act.

바) 피고 FFF, TTT, GGG, MMM, RRR, UUU(선정당사자)는 이 사건 채권 중 일부를 가압류하였고, 대한민국은 이 사건 채권 중 일부를 압류하였으며, 피고 HHH, III, JJJ, KKK, LLL, 주식회사 NNN, PPP, QQQ, SSS는 이 사건 채권 중 일부에 관하여 채권압류 및 추심명령을 받았고, 피고 VVV, 주식회사 WWW은 이 사건 채권 중 일부를 가압류한 후 가압류를 본압류로 이전하는 채권압류 및 추심명령을 받았는데, 구체적인 내용은 아래 표와 같다.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 4 (including branch numbers in case of additional number), the purport of the whole pleadings

2) Determination

The highest order between the assignee of the claim and the executor of the provisional seizure or seizure order on the same claim is determined by the date and time when the notice of assignment of claim with a fixed date reaches the obligor, and by the time when the original copy of the decision of provisional seizure or seizure order reaches the garnishee (see, e.g., Supreme Court Decision 93Da2423, Apr. 26, 1994).

First, as to the case of Plaintiff AA, according to the above facts, the notice of the transfer of the claim of this case that Plaintiff AA was the assignee of the claim of this case reached the OO Corporation later than the notice of provisional seizure of claim of Defendant V, FF, TT, and WW Co., Ltd. 84,496,00 won (=7,847,400 won + 30,800,000 won + 40,848,600 won + 5,000 won + 40,848,60,000 won + 297,49,000,000 won deducted from the deposit amount to KRW 212,504,000,000, and barring any special circumstance, Plaintiff AA’s claim for the transfer of the claim of this case exceeds the amount received by Plaintiff AAA from Defendant EA, 212,504,000 won.

Next, according to the health stand for Plaintiff BB, according to the above facts of recognition, the notice of the transfer of the instant claim to Plaintiff AA as the assignee of the claim reaches the OO Corporation later than Defendant V, FF, TF, TT, WW, GGG, Plaintiff AA’s notice of provisional seizure of claims or assignment of claims. The sum of the provisional seizure of senior claims exceeds KRW 141,187,532 (=7,847,400 + + KRW 30,800 + + KRW 40,800 + KRW 5,00,000 + KRW 21,393,805 + KRW 35,297,727). Thus, Plaintiff B, 297,000,000 through KRW 141,518,5327,5325,2581,25425,25,27,200). Thus, barring any special circumstance, the amount of claims transferred to Plaintiff BB is over KRW 415,2525,525.

Next, according to the above facts, in the case of Plaintiff CCC, the notice of the transfer of the instant claim to Plaintiff AA as the assignee of the claim reaches the OO Corporation later than Defendant V, FF, TF, TT, W W, GGG, Plaintiff AA, and BB’s notice of provisional seizure of claim or transfer of the claim. The sum of senior provisional seizure amount reaches KRW 165,305,072 (=7,847,400 + + KRW 30,800 + + KRW 40,800 + KRW 5,00,00 + KRW 21,393,80,000 + KRW 35,297,727 + KRW 24,117,500 + KRW 297,000; KRW 200,000; KRW 305,005,000; KRW 300,000; KRW 305,000; KRW 297,17,500.30.

Meanwhile, the deposit of this case constitutes a mixed deposit with payment deposit and execution deposit. From the perspective of the execution deposit, the deposit is made not only by the depositee but also by the execution creditor for the acceptance of the claim from the execution creditor. In light of the purport of the deposit, if one of the deposited parties intends to claim the withdrawal of the deposited goods, it is insufficient to have a document proving that the claim for the withdrawal of deposited goods exists only in relation to the other deposited parties, and in relation to the execution creditor, the document proving that the claim for the withdrawal of deposited goods has the right to claim for the withdrawal of deposited goods should be prepared and submitted. The plaintiffs are required to obtain confirmation that not only by the defendant EE, the other deposited parties, but also by the execution creditor, the remaining Defendants, as well as the plaintiff, to claim the confirmation that the claim for the withdrawal of deposited goods has the right to claim the withdrawal of deposited goods.

B. Determination on Defendant Republic of Korea’s assertion

1) Defendant Republic of Korea concluded a contract for the assignment of claims with a false declaration of intent that the Plaintiffs conspired formally without actual claim against Defendant EE, so the assignment of claims in this case is null and void, and there is no other evidence to acknowledge this differently, and the above assertion by Defendant Republic of Korea is without merit.

2) Defendant Republic of Korea concluded a contract with Defendant EE that the right arising from the instant contract cannot be transferred without the consent of Defendant EE and it is invalid for Defendant EE to transfer the instant claim. The Plaintiffs reviewed the instant construction materials manufacturing consignment contract with Defendant EE, which is the cause of the claim subject to transfer at the time of concluding the instant transfer contract, and even if the Plaintiffs knew or was unaware of the special agreement on the prohibition of assignment of the claim, they are deemed gross negligence, and thus, the instant transfer of the claim against the Plaintiffs by Defendant EE is null and void. On the other hand, Defendant EE’s assertion that the instant special agreement on the prohibition of assignment of claim by declaration of intent by the parties is invalid even if a third party was gross negligence for not knowing the special agreement on the prohibition of assignment of claim, as well as for the intentional or gross negligence of a third party, the third party should assert and prove it (see, e.g., Supreme Court Decision 2012Da1820, Apr. 9, 2015).

According to the health stand, Gap evidence 2-1 and 2 as to the instant case, it is found that the construction materials manufacturing consignment agreement between DD and defendant EE, which provides that the rights arising from the instant contract may not be transferred without the consent of DD Co., Ltd., but the facts of the recognition alone are insufficient to deem that the plaintiffs knew or were grossly aware of the non-assignment agreement as to each of the instant claims, and there is no other evidence to acknowledge it. Thus, the above assertion by the defendant Republic of Korea is without merit.

3. Conclusion

Therefore, each of the claims of the plaintiffs in this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.