(영문) 서울중앙지방법원 2014. 08. 29. 선고 2014가합4502 판결

4. Of the costs of lawsuit, the portion incurred by the principal lawsuit shall be determined by the plaintiff, the counterclaim defendant, and the portion incurred by the counterclaim.

The 3/4 of the portion shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Counterclaim Plaintiff, respectively.

Purport of claim

본소 : ◎◎◎◎주식회사가 2013. 11. 14.(2013. 11. 18.은 오기로 보인다) 서울중앙지방법원 2013년 금 제23775호로 공탁한 000,000,000원에 대한 공탁금출급청구권은 원고(반소피고, 이하 '원고'라고만 한다)에게 있음을 확인한다.

Counterclaim: Paragraph (a) of Paragraph (2) of this Article and the Plaintiff shall pay to the Counterclaim Plaintiff the deposit payment in attached Form 2 to the Counterclaim Plaintiff.

The Plaintiff transferred the right to claim and notified the said transfer to the Republic of Korea. The Plaintiff transferred the right to claim for payment of deposit money indicated in the attached Table 3 to the ▽▽▽▽△△, Inc., and notified the Republic of Korea of the said transfer.

Reasons

1. Determination on the main claim

A. The plaintiff's assertion

원고는 2013. 6. 4. 주식회사 금△△△(이하 '금△△△'이라 한다)으로부터 ◎◎◎◎주식회사(이하 '◎◎◎◎'라 한다)에 대한 별지 1 목록 기재 채권(이하 '이 사건 채권'이라 한다)을 양도받았고, 금△△△은 2013. 6. 7. 위 양도사실을 통지하여 2013. 6.10. ◎◎◎◎에게 위 통지가 도달하였다. 그런데 ◎◎◎◎는 원고 이외에도 피고들을 포함한 금△△△의 다른 채권자들이 이 사건 채권에 관한 권리를 주장하고 있다는 이유로 금보건업에 대한 공사대금채무 000,000,000원을 서울중앙지방법원에 공탁하였다.

The plaintiff as the legitimate transferee of the claim of this case shall be entitled to claim for the payment of deposit money.

As such, we seek confirmation against the Defendants.

B. Determination

Inasmuch as there is no evidence to support the fact that the Plaintiff received the instant claim from Geum△△△△, the Plaintiff’s assertion is without merit without examining the other issues.

2. Judgment on the counterclaim

A. Establishment of fraudulent act

1) Facts of recognition

A) From the beginning of March 2013 to the end of April 2013, 2013, the Non-Counterclaim Plaintiff: (a) the construction of the government office building in Sejong-si; (b) the construction of the Busan-si Pungllum; and (c) the construction of the iron bars necessary for the construction of the modern WIA Gwangju Metropolitan Factory; and (d) the manufacture and supply of steel bars from the gold△△△△△△△△△△ to the total amount of KRW 00,000 (=

Sejong City government office building 00,000,000 won + Busan Fristmium 00,000 won + 00,000,000 won + 00,000,000 won for steel-frames of modern WIA Gwangju Grgrogs factory 00,000).

B) On February 2013 through March 2013, 2013, Plaintiff-Counterclaim Co., Ltd. (hereinafter “Plaintiff-Counterclaim”) completed painting construction works on steel framed products for the construction of a new construction of a Hyundai WIA Mirs Factory, but was not paid KRW 46,890,000 out of the price by Geum△△△△△△△.

C) Accordingly, the court’s order for the payment of KRW 00,000,000 for the said steel frame and damages for delay thereof against the △△△△△△△△△△△△, and the Plaintiff-Plaintiff’s order for the payment of KRW 00,00,000 for the said steel frame construction work and the damages for delay thereof was each issued to the Plaintiff-Plaintiff, and each of the above payment orders was finalized on August 1, 2013.

D) However, on June 4, 2013, in collusion with the Plaintiff, who is another creditor of the gold health business, in excess of the debt, the gold△△△△△ transferred the instant claim to the Plaintiff (hereinafter “instant transfer of claim”).

E) Meanwhile, as of June 5, 2014, the amount of the claim against the △△△△△△△△△△△ of the Lessee as of the base date is KRW 00,000,000 (i.e., the principal amount of KRW 00,000,000 + the damages for delay calculated at the rate of KRW 20% per annum from July 18, 2013 to June 5, 2014). The △△△△△△△△○ is the Plaintiff’s principal amount of KRW 00,000,000 (= the principal amount of KRW 00,000,000 + the damages for delay calculated at the rate of KRW 20% per annum from July 18, 2013 to June 5, 2014).

[Reasons for Recognition] Article 150 (Voluntary Confession) of the Civil Procedure Act

2) Determination

According to the above facts of recognition, the assignment of the instant claim constitutes a fraudulent act because the gold△△△△△△△△, in collusion with the Plaintiff, one of the creditors, has the intention to harm other creditors of the gold△△△△△△△△, and constitutes a fraudulent act. Therefore, the assignment of the instant claim should be revoked.

(b) Scope of revocation and methods of reinstatement;

1) Scope of revocation

According to the above facts, the claim against the △△△△△△△△△△△△ is a total of KRW 000,000,000 (i.e., KRW 000,000 in the address of the Lessee + KRW 00,000,000 in the address of the Lessee, and is thus revoked within the scope of KRW 00,000,000 in the instant claim assignment contract.

(ii) the method of reinstatement;

A) The assertion of the Counterclaim Plaintiff

제3채무자인 ◎◎◎◎가 이 사건 채권에 대하여 원고에 대한 채권양도와 다

The Plaintiff deposited KRW 240 million of the claim amount of this case on the ground that the provisional seizure of the creditors was competition, and thereby the Plaintiff acquired the right to claim the payment of deposit amounting to KRW 240 million. Therefore, the Plaintiff’s restoration following the revocation of fraudulent act to the original state following the revocation of the fraudulent act, which is the right to claim the payment of deposit amount

별지 2 목록 기재 채권을, 반소원고 ◎◎◎◎에게 별지 3 목록 기재 채권을 각 양도하

such transfer shall be notified to Korea.

B) Determination

(1) 제3채무자인 ◎◎◎◎가 2013. 11. 14. 서울중앙지방법원 2013년 금 제23775호로서 피공탁자를 원고, 반소원고들, 금△△△, 허PP, 주식회사 RRRRR로,'이 사건 채권양도가 유효한지 알 수 없을 뿐만 아니라, 금△△△의 ◎◎◎◎에 대한 공사대금채권은 000,000,000원인데, 이를 초과하는 이 사건 채권양도 통지 및 피고들을 포함한 다른 채권자들의 가압류결정 등이 송달되어 변제공탁과 집행공탁의 원인이 중복된혼합공탁의 원인이 발생하였음'을 공탁원인사실로 하여 126,035,686원(이하 '이 사건 공탁금'이라 한다)을 공탁한 사실은 이 법원에 현저하거나, 변론 전체의 취지를 종합하여 인정할 수 있다.

(2) In a case where a third party obligor deposits money for the execution of a monetary claim due to the concurrent seizure of a claim as above, restitution following the revocation of a fraudulent act should be made by again transferring the right to claim the payment of the deposit that the Plaintiff acquired to the Geum△△△△△△△△△, a creditor of the fraudulent act (see Supreme Court Decision 2003Da38245, Jul. 9, 2004; Supreme Court Decision 2004Da9398, Jun. 25, 2004, arguing that the counterclaim should transfer the right to claim the payment of deposit money to him/her, the phrase "creditor" is used to transfer the right to claim the payment of deposit money to the creditor of the third party obligor, i.e., the creditor of the fraudulent act).

(3) However, the aforementioned argument by the Lessee is deemed to include the purport of seeking the transfer of the right to claim payment of deposit money to the Geum△△△△△△, the debtor, and thus, even without changing the purport of the claim, the transfer of the right to claim payment of deposit money may be ordered to the transferee of the instant money by designating the △△△△△△△△ as the alternative transferee. Therefore, the plaintiff is obligated to express his intention to transfer the right to claim payment of deposit money to the Geum△△△△△△△△△△, and to notify the transfer of the said

(4) On the other hand, unlike the assertion of the counterclaim, the instant deposit is merely KRW 200 million, not KRW 240 million, but merely KRW 000,000,000, and as such, the deposit payment agency for the portion exceeding the said amount among the counterclaim claim.

We cannot accept the expression of intent to transfer the right of Gu and the notification of transfer.

3. Conclusion

Thus, the counterclaim claim by the plaintiff against the plaintiff is accepted within the scope of the above recognition.

The remainder of the counterclaim and the plaintiff's main claim against the defendants are dismissed for each reason.

참조조문

-국세징수법 제43조

-민사소송법 제150조

참조판례

-대법원 2004. 6. 25. 선고 2004다9398 판결

-대법원 2004. 7. 9. 선고 2003다38245 판결

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