2019Da235702 Demurrer against distribution

Plaintiff:

Law Firm Hy-sung (Attorney Go-sung et al., Counsel for the defendant-appellant)

Construction of Corporation

Law Firm Hunting (Attorney Choi Sung-woo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018Na2052809 Decided May 9, 2019

October 15, 2020

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the ground of appeal on the establishment of the right to claim restitution of unjust enrichment

A. 1) Article 248(1) of the Civil Execution Act provides that "the third party obligor may deposit the total amount of monetary claims related to the seizure" so that all of the claims related to the seizure can be deposited without due consideration of creditor's request for deposit, claim for collection and concurrentness. Of the deposited money, the amount of monetary claims which have the effect of seizure should be considered as an execution deposit as a matter of course, but the amount in excess of the attached amount shall not have the effect of seizure. In this case, the effect of blocking the entry of dividends under Article 247(1) of the Civil Execution Act arises only for the execution deposit premised on distribution. Thus, there is no room for blocking the entry of dividends under a report on the ground of the third obligor's deposit. In addition, in the case of a creditor who has received the seizure and collection order for the obligor's right to claim payment of the deposited money after the third obligor made a mixed deposit and made a report on the reason of the deposit, it shall not be deemed that the third obligor has made a legitimate demand for distribution due to subscription to the part corresponding to the execution deposit.

2) If the seized claim at the time of the seizure and collection order had already met the requisite to set up against the obligor and the order became invalid, even if the assignment contract was revoked in a subsequent lawsuit for revocation of fraudulent act and the claim was returned to the original creditor, the seizure and collection order, which was already invalidated, does not become invalid again (see Supreme Court Decision 2004Da23110, Aug. 24, 2006).

Meanwhile, even if there was a seizure and collection order against a monetary claim, it is merely a real act of realization of a realization disposition in the compulsory execution procedure, because it merely gives the creditor the creditor the right to collect a claim against a third party debtor in the compulsory execution procedure, and this does not necessarily mean that a claim against a third party debtor is transferred or reverted to an execution creditor (see, e.g., Supreme Court Decision 2019Da256471, Dec. 12, 2019). However, upon the commencement of the distribution procedure against a deposit, the debtor’s right to claim the deposit is extinguished, and the deposit can be made only by the entrustment of payment in accordance with the distribution procedure as the distribution foundation. Thus, the creditor who received the seizure and collection order against the debtor’s right to claim the deposit payment has the right to receive the amount of dividends specifically, not by the collection right (see, e.g., Supreme Court Decision 2015Da2609, Jan. 31, 2019).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) On March 3, 2011, the Defendant applied for a payment order against Jinjin General Construction Co., Ltd. (hereinafter referred to as “Jinjin General Construction”), seeking the payment of contributions under the joint supply and demand agreement, and on March 3, 2011, the court issued a payment order (hereinafter referred to as “the instant payment order”) stating that the Defendant would pay the Defendant the amount of KRW 943,860,000 and the amount calculated at the rate of KRW 20% per annum from March 30, 2011 to the date of full payment. The instant payment order was finalized around that time.

2) On December 6, 2011, 201, 1997, 200, 200 won of construction in 480,288,000 to Incheon Metropolitan City (hereinafter “the instant claim”). However, on December 6, 201, 200, 200 were transferred the instant claim to Nonparty 1, and on the 7th day of the same month, 200, 2006, 2000 won of construction in 30,000 won

3) On June 4, 2012, the Defendant received a seizure and collection order (hereinafter “instant seizure and collection order”) regarding the instant claim with the amount of KRW 1,166,138,907 as the principal and interest of the instant payment order as the claim claim, and the said order was served on Incheon Metropolitan City on June 11, 2012.

4) On July 10, 2012, Incheon Metropolitan City: (a) filed a report on the reason of deposit on July 10, 2012; and (b) filed a report on the reason of deposit on July 10, 2012, on the grounds that there are concurrent claims between several seizures and collection orders; (c) provisional seizures and the transfer of claims to Nonparty 1, and (d) deposit the deposited person with KRW 480,288,000 as a single comprehensive construction or Nonparty 1 (hereinafter “instant mixed deposit”); and (d) the report on the reason of deposit contains the following contents.

A) The judgment of the court below 20,02,120 won of the non-party 2's seizure and collection order (the amount requested, 45,02,120 won, 20 January 8, 2010) was delivered to the plaintiff 60,000 won of the debt provisional seizure (the amount requested, 60,000 won, 60,000 won, 11 March 11, 2010), 30,000 won of the debt provisional seizure (the amount requested, 9,50,000 won, 200, 2000 won, 30,000 won, 20,000 won, 200, 200,000 won, 140,000 won, 140,000,000 won, 20,000 won, 161,016,000 won, 216,07,01,01.

7) The Defendant filed a lawsuit against Nonparty 1 on the ground that the assignment of claims against Nonparty 1 by Jinjin General Construction against Nonparty 1 is a fraudulent act, and that the claim for cancellation of the assignment of claims of this case and restitution to the original state (hereinafter “the lawsuit seeking cancellation of the instant fraudulent act”). On January 27, 2015, the court revoked the instant transfer of claims. Nonparty 1 rendered a judgment on the transfer of claims for the instant mixed deposits to Jinjin General Construction, transferring the claim for withdrawal of the instant mixed deposits, and giving notice to the Republic of Korea at that time. The aforementioned judgment became final and conclusive at that time.

8) On December 31, 2015, the Plaintiff received a seizure and collection order with respect to the claim amounting to KRW 314,505,958 of the principal and interest of the instant judgment as the claim amount. On January 6, 2016, the above order was served on the Republic of Korea on January 6, 2016. On October 26, 2017, the Plaintiff received a seizure and collection order with respect to the claim amounting to KRW 367,176,66 as the principal and interest of the instant judgment and KRW 367,76,66 as the claim amount, and the Plaintiff received a seizure and collection order with respect to the claim amounting to KRW 37,50 as the claim amount to KRW 14,50 (the above order was served to the Republic of Korea on January 10, 2017, KRW 10, and KRW 36,64, the Incheon District Court’s order of seizure and distribution order to KRW 27,364, the Plaintiff’s deposit.

1) It is reasonable to view that the above seizure and collection order is null and void, since the Defendant’s claim at the time of receiving the seizure and collection order of this case was transferred by meeting the requisite to set up against Nonparty 1. Even if the assignment contract of this case was revoked in a lawsuit subsequent to the revocation of the fraudulent act in this case, the above seizure and collection order of this case already invalidated is not valid again.

2) Even if it is assumed that the attachment, provisional attachment, and provisional attachment other than the invalid defendant's attachment as indicated in the report on reasons of deposit in Incheon Metropolitan City, which is the garnishee, are all valid, the monetary claim amount on the effect of the attachment and provisional attachment is 321,035,590 won (= KRW 45,02,120 won + KRW 36,280,000 + KRW 60,500 + + KRW 9,500,000 + KRW 140,000 + KRW 30,23,470). Thus, some of the amount of the mixed deposit in this case should be considered as the repayment deposit.

3) However, the effect of blocking the entry into a distribution under Article 247(1) of the Civil Execution Act is limited to the execution deposit premised on distribution. As such, regarding the portion of the instant repayment deposit out of the instant mixed deposit, there is no room for blocking the entry into a distribution by a report on the reason of deposit in Incheon Metropolitan City, which is the garnishee, and as to the instant repayment deposit, the distribution procedure has not yet been initiated.

4) Therefore, prior to the commencement of the distribution procedure for the instant repayment deposit, the Plaintiff merely received a seizure and collection order regarding the right to claim for withdrawal of the instant repayment deposit with regard to the instant repayment deposit, and did not acquire the instant repayment deposit itself, even though it was merely the right to collect the instant repayment deposit. In addition, the Plaintiff does not have a specific right to receive the dividend in a specific amount, taking into account the claims of other creditors who participated in the instant repayment out of the instant repayment deposit.

5) If so, the plaintiff only has a potential and abstract expectation that he would receive the unpaid amount of money after collecting the deposited money of this case. It does not have a specific right to the deposited money of this case. Thus, even if the defendant entered in the distribution schedule that he received a dividend from the deposited money of this case without a legitimate title, it cannot be said that the plaintiff's specific right to the deposited money of this case was infringed.

D. Nevertheless, the lower court rejected the Plaintiff’s claim for return of unjust enrichment on the ground that the Plaintiff, who received a seizure and collection order as to the claim for withdrawal of the mixed deposit of the instant combined construction after the interruption of the subscription to dividends by the report on the ground of deposit in Incheon Metropolitan City, a third debtor, could not be deemed to have lawful demand for distribution. In so determining, the lower court erred by misapprehending the legal doctrine regarding the validity of the seizure and collection order following the revocation of fraudulent act, the scope of the effect of the seizure and collection order, and the occurrence of the effect of blocking the subscription in the mixed deposit. However, the lower court’s dismissal of the Plaintiff’s claim for return of unjust enrichment

2. As to the ground of appeal on the duty to resume pleadings

For the reasons indicated in its holding, the lower court determined that the court cannot be deemed to have a duty to resume pleadings solely on the ground that the Plaintiff filed an application for resumption of pleadings in subrogation of the comprehensive construction of the Jinjin General Construction as a creditor of the Kinjin General Construction in order to claim the return of unjust enrichment against the Defendant. Examining the relevant legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-soo

Chief Justice Lee Dong-won

Justices Park Il-san

Justices Heung-gu