Whether a decision to authorize composition against a debtor becomes final and conclusive and conclusive, the debtor's right to claim ownership transfer or provisional seizure against a third party debtor is invalidated (affirmative)

According to Article 40 (2) of the Composition Act, compulsory execution, provisional seizure and provisional disposition against the debtor's property with respect to composition credits prior to the commencement of composition procedures shall be suspended during composition procedures. Article 62 of the Composition Act provides that compulsory execution, provisional seizure and provisional disposition suspended under Article 40 (2) shall lose its effect when the decision of approval of composition becomes final and conclusive. Thus, provisional attachment against the third debtor's claim for registration of transfer of ownership against the debtor's third debtor shall become effective by the confirmation of the approval decision of composition.

Articles 40(2) and 62 of the Composition Act

Lee-nam (Attorney Kim Hho, Counsel for the defendant-appellant)

Seoul High Court Decision 200Na14488 delivered on August 1, 200

1. The plaintiff's claims against the defendants are all dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendants delivered 82,038,000 won per annum to the plaintiff and 25% interest per annum from the day following the delivery of the complaint of this case to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or they can be acknowledged in full view of the whole purport of the pleadings in Gap evidence 1, Gap evidence 8, 9, Gap evidence 11, and Eul evidence 1 and 2, and there is no counter-proof.

A. On March 30, 1995, the Plaintiff agreed to sell 149,160,000 won a down payment of KRW 29,832,200 on the date of the contract, and KRW 29,832,00 on November 30, 1995, the sum of KRW 22,374,000 on November 30, 30 of the same year between the Defendant Sejong Flag Co., Ltd. (hereinafter “Defendant Sejong Flag”), and the Plaintiff paid KRW 82,038,00,000 to the Defendant Flag.

B. On July 5, 1996, the Plaintiff agreed with the Defendant to change the above sales contract’s 39 units to 64 units of the second floor (10.05 units) and to 11,550,050 won.

C. On July 9, 1998, Defendant Sywon sent to the Plaintiff a content-certified mail containing an expression of intent to cancel the instant sales contract on the grounds of the unpaid balance, and around that time, the said content-certified statement reached the Plaintiff.

D. Meanwhile, on March 27, 1993, a real estate trust company against the Defendant (hereinafter “Defendant’s real estate trust”) entered into a sales contract on the said building site of Hyundai Co., Ltd., which is the site of the said modern Co., Ltd., which was entrusted by the Defendant Sewon Housing Service Co., Ltd. (hereinafter “instant site”).

E. On March 198, 198, the real estate trust against the defendant was issued a provisional attachment on the right to claim the transfer registration of ownership against the real estate trust against the defendant Sejong District Court's 98Kahap3688 on July 11, 1998, on the ground that the claim for the refund of the sale price due to the termination of the above sale contract was a preserved right and the claim for the sale price refund due to the termination of the above sale contract was made as the preserved right.

F. Around July 1998, Defendant Sejong District Court applied for the commencement of composition to the Seoul District Court, and the same court decided the commencement of composition on November 5 of the same year. On November 30 of the same year, the Plaintiff filed a report with the above court on November 30 of the same year on the composition bond, and on December 10 of the same year, the approval decision was finalized at the same court as 98Da145 of the same year, and around that time, the above approval decision became final and conclusive. According to the terms and conditions of the authorized composition, if the principal exceeds KRW 10 million among the claims of the Plaintiff’s reported claim and the claims of the ordinary creditors who have no security interest, the principal exceeds KRW 10 million at the end of 1999, and the remaining principal shall be paid at the end of the five years from the end of 200 to the date of 204, and the interest accrued and future interest shall be exempted.

G. On November 18, 199, the real estate trust against the defendant was ordered to commence composition from the defendant Sejong Flag on November 18, 199, and the certificate of seal imprint for which the time of use elapsed among the documents already issued was delivered to the defendant Sejong Flag, and on January 15, 199, the registration of ownership transfer was made in the name of the defendant Sejong Flag.

2. Determination

A. Determination as to the claim against the defendant Sejong Faz.

On July 7, 1998, the plaintiff asserts that the defendant is obligated to return the sale price already paid to the plaintiff upon the termination of the sales contract in this case. Thus, according to the above facts, the defendant had the obligation to return the sale price already paid by the plaintiff around July 1998 upon the termination of the sales contract in this case. However, the claim for the return of the sale price is a composition bond as a claim arising before the commencement of composition is decided around November 5 of the same year, and when the decision of approval of composition becomes final and conclusive, all composition claims have the same legal effect as the contract was concluded between the composition creditor and the composition debtor and the composition participant, and all composition claims are changed to general and abstractly in accordance with the composition condition (Supreme Court Decision 98Da59644 delivered on March 26, 199), and the obligation to return the sale price to the above defendant was changed in accordance with the attachment condition against the above plaintiff.

Meanwhile, according to the facts acknowledged above, since the plaintiff is a general creditor who has no security right and the principal exceeds 80 million won, the defendant shall pay 82,038,000 won out of the principal as of the end of 1999, and the remaining principal shall be repaid in equal installments every five years from the end of 2000 to the end of 2004, so the defendant's above obligation to return the price was modified as above by the confirmation of the approval of composition.

If so, the defendant's obligation is not yet due, and the plaintiff's claim seeking the payment of the obligation which has yet to be due is without merit.

B. Determination on the claim against the Defendant’s real estate trust

The plaintiff claims compensation against the defendant for damages by asserting that the plaintiff caused damage to the plaintiff by illegally granting the plaintiff the right to request the transfer registration on the site of this case, despite the provisional seizure of the right to claim the transfer registration on the site of this case. Thus, in the event of provisional seizure on the right to claim the transfer registration, the third debtor is prohibited from arbitrarily performing the transfer registration on the ground of the prohibition of repayment, and the third debtor is liable for damages to the creditor as a result of the debtor's disposal on the ground that the third debtor neglected the provisional seizure and performed the transfer registration and caused damages to the creditor (see, e.g., Supreme Court en banc Decision 92Da4680, Nov. 10, 1992; Supreme Court Decision 96Da11649, May 29, 198; Supreme Court Decision 200Da4680, May 29, 198; Decision 2000Du1549, May 15, 199).

Thus, the defendant's issuance of a certificate of seal impression necessary for the registration of transfer on November 18, 1998 and caused the defendant Sejong Flag to complete the registration of transfer on January 15, 199 cannot be deemed as an unlawful act in violation of the above provisional seizure. Thus, the plaintiff's claim against the defendant for tort liability on the premise that the defendant's unlawful act is against the above provisional seizure is without merit.

3. Conclusion

Ultimately, the plaintiff's claim against the defendants of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Hong-ho (Presiding Judge)