[Judgment of the court below]

Hong Kong High Bank's business office (Law Firm Gyeongsung, Attorneys Jeon Sung-jin et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2008Gahap35055 Decided June 26, 2009

March 24, 2010

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant, in its primary and conjunctive, shall pay to the plaintiff 216,72,893 won and 196,722,893 won with 6% interest per annum from March 27, 2008 to April 28, 2008; 20% interest per annum from the next day to the date of full payment; and 20 million won with 20% interest per annum from April 29, 2008 to the date of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 1, 3, 4, and Eul evidence Nos. 6 and 19.

A. On March 21, 2008, the Plaintiff received on March 21, 2008 the seizure and collection order (hereinafter “the collection order of this case”) against the Defendant against the vectonson Korea Co., Ltd. (hereinafter “Nonindicted Company”) based on the executory exemplification of the judgment in claim such as wages, etc. (hereinafter “the judgment of this case”) from the Busan District Court Branch Branch of the Seoul District Court Decision 98Gahap11956 (hereinafter “the judgment of this case”). The instant collection order was served on the Defendant on March 26, 2008.

Until the amount is KRW 307,118,600 according to the order stated below among the following deposit claims possessed by the non-party company against the defendant:

1. In the case of an unregistered deposit or a deposit which has been seized, seizure shall be made in the following order:

(a) Pre-Attachment. Deposits not subject to seizure;

(b) Pre-trial seizure;

2. In case there are several kinds of deposits, they shall be seized in the following order:

(a) Time deposits; (b) Regular deposits; (d) Ordinary deposits;

3. When the same kind of deposit has several accounts, attachment shall take place from the first account number.

B. On March 26, 2008, the Defendant transferred KRW 110,395,707 in the bank account of the non-party company according to the collection order of this case to the Plaintiff’s bank account opened.

C. In addition, on March 27, 2008, the Defendant deposited KRW 180,690,457 in the non-party company’s deposit account, and transferred the money to the Plaintiff’s deposit account in accordance with the instant collection order around 16:28, based on the instant collection order, on the ground that it is unclear whether the payment after the delivery of the instant collection order affects the instant collection order, the Defendant cancelled the transfer of the said money by means of correction of error around 17:34 on the same day.

D. After that, on March 26, 2008, the defendant deducted 110,395,707 won from the claim amount of the collection order of this case 307,118,600 won from the collection amount of 307,118,60 won and deducted from the collection amount of 110,395,707 won from the collection amount to the plaintiff, and notified the plaintiff.

2. Summary of the parties’ assertion

A. The plaintiff's assertion

(1) The primary claim

(A) On March 27, 2008, the defendant conspireds with the non-party company and transferred KRW 180,690,457 to the plaintiff's deposit account on the same day, and revoked the transfer without the plaintiff's consent. This constitutes a tort violating the rules of execution of common exchange network, the rules of execution of electronic network business, the deposit transaction basic terms and conditions, etc., and the plaintiff is obligated to pay the remainder of the collection amount to the plaintiff as a matter of course upon the plaintiff's decision of correction of the collection order of this case. Thus, the defendant interferes with the plaintiff's exercise of the plaintiff's right of collection. Thus, the defendant is obligated to compensate the plaintiff for damages incurred by the above tort, 196, 72,893 won, and damages for delay.

(B) Upon hearing the awareness that the Plaintiff deposited KRW 180,690,457 from the Defendant on March 27, 2008, the Plaintiff paid KRW 20,000,000 for the remainder of KRW 140,000 by April 6, 2008, while paying the remainder of KRW 140,000,000 for the rental of a house from the Nonparty. However, due to the above tort committed by the Defendant, the lease was canceled and the down payment was confiscated in KRW 20,000. The Defendant is also liable to pay the said KRW 20,000,000 as a tort and the delay damages therefrom.

Even if the above damage is not acknowledged, the plaintiff suffered mental damage due to the above tort by the defendant, and the defendant is obligated to pay the plaintiff the consolation money of KRW 20,000,000.

(C) In addition, the Defendant’s cancellation of the above transfer constitutes a nonperformance of the obligation to pay the collection amount under the collection order of this case, and thus, the Defendant has the obligation to compensate the Plaintiff for the money as referred to in the above (a) and (b) as damages arising from nonperformance.

(2) Preliminary assertion

The defendant is obligated to pay to the non-party company KRW 196,722,893 of the deposit claim. Thus, the plaintiff is demanded to pay KRW 196,722,893 of the collection amount as the collection creditor based on the collection order in this case.

B. Defendant’s assertion

On the other hand, the defendant has controversy over the validity of the collection order of this case as to KRW 180,690,457 deposited into the bank account of the non-party company, and the defendant's working-level officer transferred the money to the plaintiff's bank account due to the loss in communication, and the cancellation of the order is merely correct, and thus did not commit a tort jointly with the non-party company. After that, the non-party company was unable to receive a decision of suspension of compulsory execution following the plaintiff's filing of a lawsuit of objection against the plaintiff, and the non-party company deposited KRW 196,722,893, which is the amount corresponding to the remaining collection amount of the plaintiff, and the defendant did not pay any error to the plaintiff, and the obligation to pay the collection amount was extinguished, and thus the plaintiff's assertion is unjust.

3. Determination

(a) Facts of recognition;

The following facts may be acknowledged either in dispute between the parties or in full view of the purport of the entire pleadings as stated in the evidence Nos. 2, 3, 4, 8, 12, 13, 20, 23, 26, 32, 33, and evidence Nos. 2, 4, 5, 6, 9, 11, 12, 15, 16, 18, 19, 21, 22, 26, and 27:

(1) On December 21, 2007, the Seoul High Court rendered a judgment that the provisional attachment does not have the effect on the deposit money to be deposited after the provisional attachment order in the case where the claim to be provisionally seized was indicated as "amount until the above claim amount among the following deposit claims held by the debtor against the third debtor" in the provisional attachment order of the deposit claim. The judgment was published as an article in the Legal Newspapers on February 20, 2008, and the defendant's legal office also announced the defendant's above sentence to the working person on February 22, 2008.

(2) On March 26, 2008, the defendant's legal office transferred the above KRW 110,395,707 to the plaintiff's deposit account according to the collection order of this case, and there is a dispute as to whether the effect of the collection order of this case extends to the person in charge of the business support division on the future deposit amount. Thus, if the plaintiff requests the payment of additional collection amount, the defendant's legal office requested the payment of additional collection amount after consultation with the legal office.

(3) However, on March 27, 2008, the Plaintiff’s demand for collection of KRW 180,690,457 deposited to the account of the non-party company was defective, and the person in charge of the defendant’s work support division, who was unaware of such demand from the legal office, transferred the said money to the Plaintiff’s account at around 16:28.

(4) After that day, at around 17:34 of the same day, the defendant confirmed that the above money was transferred to the person in charge of the legal affairs, and revoked the transfer by means of an error correction. On the deposit account of the non-party company, the defendant took measures of suspension of withdrawal as to the remaining collection amount of KRW 196,722,893 based on the collection order of this case.

(5) Meanwhile, in order to hear the dispute as to whether the effect of the collection order of this case extends to the deposits deposited in the future from the defendant, and to clarify the scope of the validity of the collection order of this case, the plaintiff filed an application for correction against the collection order of this case, and received a decision of correction (hereinafter referred to as the "decision of correction of this case") to add the "current deposit claim and future deposit claim" to the phrase on the claim subject to seizure as to the collection order of this case on April 2, 2008. The decision of correction of this case was delivered to the defendant on April 2, 2008.

(6) On April 1, 2008, the non-party company sent an official document to the defendant on April 1, 2008, and the non-party company filed a lawsuit of objection with the Seoul Western District Court on the ground that the debt based on the judgment of this case was fully extinguished, and filed an application for the suspension of compulsory execution accordingly, and requested that the non-party company comply with the plaintiff's claim for the collection

(7) Ultimately, on April 2, 2008, subject to deposit of KRW 30,000,000, the non-party company received a decision to suspend compulsory execution based on the instant judgment until the Seoul Western District Court 2008Gadan23050 decided to suspend compulsory execution until the judgment of the lawsuit of objection is rendered (the subsequent decision to suspend compulsory execution of this case) and presented the decision to suspend compulsory execution of this case to the Defendant on April 2, 2008.

(8) On April 2, 2008, the Defendant received the instant decision of correction, and decided to keep the payment of the collection amount according to the instant collection order until the dispute between the Plaintiff and the non-party company arises.

(9) On April 10, 2008, the Defendant received a notification from the Daegu District Court Kimcheon Branch that “The payment of the claim shall not be made before the decision of suspending compulsory execution of this case loses its effect” pursuant to Article 161(1) of the Civil Execution Rule.

(10) On January 16, 2009, the non-party company accepted the non-party company's offset order against the non-party company's wage claim 212,410,451 won up to March 5, 2005 from Seoul Western District Court Decision 2008Gahap10617 (the case of demurrer 2008Gadan23050) (the plaintiff collected from the defendant) to the collegiate division. Since then, the non-party company's counterclaim against the non-party company's wage claim 212,410,451 won up until March 5, 2005 (the plaintiff's compulsory execution based on the judgment of this case was not dismissed only from March 6, 2005 to the rehabilitation of the defendant from March 6, 2005 to May 31, 209 or from May 2, 2009, the plaintiff's appeal 209 already terminated the procedure of this case's compulsory execution.

(11) On January 28, 2009, the non-party company was ordered to make a provisional attachment of the amount until it reaches KRW 154,916,66, out of the amount collected according to the collection order of this case that the plaintiff had against the defendant, with the claim for the provisional payment claim and interest interest claim as Seoul Western District Court Decision 2009Kahap154, Seoul Western District Court Decision 2009Kahap154, and the provisional attachment order of this case was served to the defendant around that time.

(12) On March 24, 2009, the Defendant deposited KRW 196,722,893 as a disturbance on the ground that the Daegu District Court Kimcheon Branch issued a collection order of this case by the Plaintiff and the provisional seizure order of this case by the non-party company was decided by the non-party company under Article 248(1) of the Civil Execution Act, and the depositor deposited KRW 196,72,893 as a disturbance.

(13) Article 28 provides that "The cancellation transaction means cancellation of initial transaction caused by erroneous manipulation, etc. on the counter of the requesting bank in the course of operating the electronic financial network system on the day" and Article 29 provides that "the cancellation transaction shall only be made on the day of the occurrence of the transaction." The cancellation transaction shall, in principle, be made only by the internal error of the requesting bank in the counter of the daily occurrence transaction. The cancellation transaction shall be handled on the day, within the operating hours of the exchange and shall not be cancelled after that hour. The cancellation transaction shall not be processed after that day." Article 22 provides that "The cancellation transaction means a transaction in which the electronic financial network system has already been completed during the operating hours of the electronic financial network system, and "the cancellation transaction shall be cancelled on the online transaction that has already been completed during that period." Article 23 provides that "The cancellation transaction shall be made within 30 hours from that on the day of the operation of the electronic financial system (including equipment, etc.) which has already been completed on the day to that of the cancellation.

B. Determination

(1) Judgment on the main claim

(A) Ministry of Gender Equality;

Therefore, in order to obstruct the exercise of the plaintiff's right in collusion with the non-party company, we examine whether the defendant cancelled the transfer of KRW 180,690,457 without due authority and did not pay the remaining collection amount of the plaintiff.

The descriptions of evidence Nos. 5, 6, and 20 are not sufficient to recognize it, and there is no clear evidence to find otherwise that the defendant committed a tort.

Rather, according to the above facts of recognition, the defendant deposited KRW 180,690,457 into the plaintiff's account on March 27, 2008 is due to the actual number of communication inside the defendant. The defendant deposited the above money from the non-party company's deposit account to the plaintiff's deposit account, and the cancellation of the transfer is not a kind of exchange, and therefore it is not a kind of exchange, and it is difficult to view that the operation time of electronic financial transactions was not 17:00, since the cancellation transaction was not conducted until 23:30.

In addition, the defendant's deposit of the above money in the plaintiff's deposit account is not by the remitter's request. In this case, it cannot be said that the defendant can only cancel the transaction due to the erroneous operation of the handling institution system (including communication equipment, etc.). Considering the fact that the third debtor of the collection order of this case, as the third debtor of the collection institution of this case, who withdraws the deposit from the debtor's deposit account to the collection creditor's deposit account and transfers the money to the collection creditor's deposit account without the debtor's request, it is possible to correct, withdraw, or cancel the transaction by the internal error, regardless of the rules of execution of the joint financial network and the rules of execution of the electronic financial network business, the defendant's transfer of the above money to the plaintiff's deposit account can not be deemed to have violated the rules of execution of the joint financial network and the rules of execution of the electronic financial network business, or that the defendant's act of cancellation was a mistake.

In addition, as seen in the above facts, even if the defendant was notified by the executing court of prohibition of repayment according to the decision of suspension of compulsory execution of this case on April 10, 2008, it was already decided to suspend compulsory execution of this case, and as long as the defendant knew of this fact due to the presentation of the decision of the non-party company on April 2, 2008 and delayed the payment of the collection amount to the plaintiff, it cannot be deemed that there was any error in the defendant's failure to pay the collection amount to the plaintiff after receiving the notice of suspension of compulsory execution of this case.

Therefore, the plaintiff's assertion based on the premise that the defendant committed a tort cannot be accepted without further review.

(B) Ministry of Gender Equality;

On the other hand, after the collection order of this case was issued, the defendant transferred KRW 180,690,457 to the plaintiff's deposit account, and then cancelled the transfer. After which the plaintiff received the decision of correction of this case, the defendant reserved the payment of the collection amount on the ground of the decision of suspension of compulsory execution of this case. However, as seen earlier, the defendant did not err by the decision of suspension of compulsory execution of this case. Thus, the plaintiff's assertion on the ground of non-performance on the premise that the defendant's error

(2) Determination on the conjunctive claim

The defendant deposited the full amount of KRW 196,722,893 of the plaintiff's remaining collection amount on March 24, 2009, and thus, the defendant exempted the obligation to pay the collection amount.

The plaintiff asserts to the purport that the defendant did not have been exempted from liability because the damages for delay incurred before the date of deposit by the defendant did not have been deposited. However, as seen earlier, the defendant reserved the payment due to disputes as to whether the collection order of this case affects the future deposit claims, and thereafter, the plaintiff's argument that the payment was delayed due to the defendant's mistake since the defendant did not pay the collection amount properly by the decision of suspension of compulsory execution after the decision of this case was rendered.

Therefore, the plaintiff's above assertion based on the premise that the defendant is liable to pay the collection amount cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is dismissed as the plaintiff's appeal. It is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)