Whether the seizure of the right to claim the payment of deposit is justified

Since the claim of a partnership under the Civil Act reverts to all the union members, one of the union members can not claim the payment from the debtor of the partnership at his/her own discretion according to the ratio of contribution shares, barring any special circumstance, and thus the claim against one of the union members cannot be attached as a claim against the union members for an execution debtor.

The contents of the decision shall be the same as attached.

1. On May 15, 2006, it is confirmed that the Plaintiff and the Defendants, the Republic of Korea (Ministry of National Defense) deposited KRW 3,212,96,170 with the Daejeon District Court Seosan Branch Office No. 222 in 2006, May 15, 2006, claims for payment of deposit money against the Plaintiff.

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

As set forth in the text.

1. Basic facts

The following facts shall be deemed to have been led by the Defendants respectively pursuant to Article 257(1) of the Civil Procedure Act between the Plaintiff and the Defendant ○○ Development Co., Ltd. (hereinafter “Defendant Co., Ltd.”), and the least ○○m, pursuant to Article 257(1) of the said Act, the Defendants shall be deemed to have led to their confessions, and the following facts may be acknowledged by comprehensively taking into account each of the statements in the Plaintiff and the Defendant Kim ○, Lee ○, Lee ○, Lee ○, Lee○, Lee○, Lee○, Lee○○, ○○○, and ○○, Inc. (hereinafter “Defendant Bank”), and the Republic of Korea (hereinafter “Defendant Republic of Korea shall be limited to the Defendant Republic of Korea only if the competent authority separately indicates, and in other cases, the Republic of Korea shall be referred to as the Republic of Korea without separately indicating the competent authority) (where all of Defendant Kim ○, Lee ○, Lee ○, Lee ○, and Defendant

A. The Plaintiff and Defendant ○○m Co., Ltd. were engaged in the construction business on the ground of the business. The Defendant Co., Ltd. was established for the purpose of housing construction business. The Plaintiff, the Defendant Co., Ltd. and Defendant ○m Co., Ltd. (hereinafter collectively referred to as the Plaintiff, etc., when the Plaintiff, the Defendant Co., Ltd., and Defendant ○m Co., Ltd., together with Defendant ○○m Co., Ltd.) made a mutual investment of money, etc., to purchase land of 1046 m2 and 496 m2 and 37 m2, which was managed by the Ministry of National Defense from the Republic of Korea from the Republic of Korea, and agreed to jointly engage in the relevant business, such as construction and sale of collective housing and auxiliary facilities on the ground. On December 5, 2003, the Plaintiff, etc. entered into a contract with the Republic of Korea to purchase the instant land from the Republic of Korea to the Republic of Korea (hereinafter referred to as the instant sales contract).

B. The Plaintiff et al. did not pay the balance of the sales price of KRW 44,497,00,000 until February 2, 2004, which is the remainder payment date agreed upon through the instant sales contract. Korea notified the Plaintiff et al. on May 17, 2004 that the remainder payment date will be postponed by May 31, 2004. In the event that the Plaintiff et al. fails to perform the obligation to pay the remainder by May 31, 2004, it notified the Plaintiff et al. of the purport that the instant sales contract will be rescinded even if there is no separate notice from the Republic of Korea. However, the Plaintiff et al. did not pay the balance of the sales price to the Republic of Korea by May 31

C. On June 4, 2004, the Plaintiff et al. asserted the validity of the rescission of the instant sales contract by Korea, and filed a lawsuit claiming the Republic of Korea to implement the procedure for ownership transfer registration of the instant land as the first instance court 2004Gahap43157 on June 4, 2004, and sought the return of the down payment of KRW 4,944,113,000 paid by the Plaintiff et al. in preliminary case. This court ordered the payment of 5% per annum from the next day to the day of full payment, and 20% per annum from the next day to the day of full payment. The above judgment became final and conclusive on August 23, 2007 (hereinafter the related judgment of this case).

C. As to the claim to return down payment following the cancellation of the instant sales contract against the Defendant Company as the obligees against the Defendant Company, the Defendant Bank received each of the claims to return down payment following the cancellation of the instant sales contract against the Republic of Korea as the obligees against the Defendant Company, and the Defendant Bank received each of the claims to return down payment due to the cancellation of the instant sales contract against the Republic of Korea from the Defendant largest ○m, as indicated in the following list of claims seizure, etc., and each of the above claims seizure and assignment orders became final and conclusive.

D. Meanwhile, when a mutual relationship between the plaintiff, etc. falls under a partnership relationship under the civil law, the KAF officer of the Republic of Korea: (a) whether to pay the amount according to the relevant judgment of this case to the plaintiff, and whether to pay the plaintiff, etc. to all the plaintiff et al. is in an uncertain state; and (b) whether to pay the amount according to the relevant judgment of this case to all the plaintiff et al. is not known to the creditor; and (c) even if to pay the amount according to the relevant judgment of this case to the defendant company or the defendant ○m or defendant company, the deposited person on May 15, 2006 shall be the plaintiff or defendant company or the defendant company, and (d) under the latter part of Article 487 of the Civil Act and Article 248(1) of the Civil Execution Act, the relevant evidence protocol was made as follows: (a) No. 222206, May 15, 2006, the amount of award pursuant to the relevant judgment of this case and the deposit and its execution deposit (hereinafter referred to the deposit of this case).

E. After that, Defendant Republic of Korea seized Defendant ○○○’s right to claim the payment of the deposit money of this case on December 18, 2007, based on the taxation claim amounting to KRW 1,029,062,260 against Defendant ○○m, and notified the Republic of Korea of attachment on December 21, 207.

2. Judgment on the plaintiff's claim

A. Summary of the plaintiff's assertion

(1) On May 6, 2004, the Plaintiff’s mutual relationship with the Plaintiff constitutes a partnership under the Civil Act. Since Defendant Company and Defendant ○○m withdrawn from the partnership relationship with the Plaintiff on May 6, 2004, Defendant Company and Defendant ○○m did not have the right to claim the return of the down payment or the right to claim the return of the deposit money in accordance with the relevant judgment, which is the union property, and therefore, Defendant Company and Defendant ○mm did not have any right to claim the return of the down payment or the right to claim the return of the deposit money, on the premise that Defendant Company and Defendant ○○m did not have any right to claim the return of the down payment or the right to claim the return of the deposit money, the Plaintiff’s right to claim the payment of the deposit money in this case has no right to claim the return of the down payment or the right to claim the return of the deposit money in this case. Therefore, even if Defendant ○m et al. did not withdraw from the partnership relationship with the Plaintiff, it is both invalid and void.

B. Determination

(1) Determination as to the claim against the Defendant Company and the Defendant’s largest ○ms

Judgment without Oral Proceedings (Article 208 (3) 1 of the Civil Procedure Act)

(2) Determination as to the claim against Defendant Kim Jong-soo, etc.

(A) Judgment on the main argument

According to the above facts, the plaintiff et al. entered into an agreement to jointly carry on business related to the construction, sale, etc. of multi-family housing and its incidental facilities by making a mutual contribution with money, and purchased the land of this case accordingly. Thus, the plaintiff et al. is in a relationship with the association under the Civil Act (hereinafter the "association of this case"). Furthermore, in light of each of the statements in the evidence Nos. 3 and 10, it is difficult to recognize the withdrawal from the association of this case, and since there is no other evidence to acknowledge it, the plaintiff et al.'s main claim of this case is without merit without any need to further examine the remaining points.

(B) Judgment on the conjunctive assertion

(1) In disposing of the partnership-owned properties, the transfer of the partnership-owned properties to the Republic of Korea without the consent of all the other partners is effective (Article 272 of the Civil Act). Since the claims of the association under the Civil Act accrue to all the union members, barring any special circumstance, one of the union members can not claim payment according to the ratio of investment reduction against the obligor of the association at will. Thus, one of the union members can not make compulsory execution against the union-owned properties with claims against the executor-owned properties. (See Supreme Court Decision 2002Da13522 delivered on September 2, 2003). Since the plaintiff et al. are in a relationship with the association under the Civil Act, since the above claims for return of the down payment or the right for payment of the deposit-owned properties against the Republic of Korea, which is the entire claims or attached properties or the right for payment of the deposit-owned properties, the above claims for return of the deposit-owned properties or the right for payment of the deposit-owned properties cannot be received from each of the defendant association-owned properties or the attached properties.

② In the case of the so-called mixed deposit where the repayment deposit and the execution official's choice have been combined with the deposit of this case, in order for the Plaintiff to receive the payment of the deposit of this case, the principal may claim the withdrawal of the deposit only by submitting to the deposited public official a document proving that the Plaintiff's right to claim the payment of the deposit of this case belongs to the Plaintiff in relation to all interested parties, including other deposited parties, including the creditor of the claim for the payment of the deposit of this case (a written consent or the original copy of the judgment confirming the right to claim the payment of the deposit of this case (a written consent). However, it is recognized that the Plaintiff had the right to claim the payment of the deposit of this case between the Plaintiff, the Defendant, the Defendant, and the Defendant ○○m as seen in the above 2. B. (1) and the above 2.B. (1) were invalid, and thus, Defendant Kim ○, etc. cannot have any right against the instant deposit of this case.

3. Conclusion

Therefore, each of the claims against the defendants of this case against the plaintiff is with merit, and it is so decided as per Disposition.