Seoul Central District Court 2014Kadan5194809 ( January 22, 2015)

If a debtor satisfies the requirements for setting up against the transfer of claims by a notice, etc. with a fixed date, the seizure or provisional seizure shall not be effective thereafter.

If a debtor satisfies the requirements for setting up against the transfer of claims by a notice, etc. with a fixed date after transferring the claims subject to attachment or provisional attachment, even if another creditor of the debtor seizes or provisional attachment of the transferred claims, the claims subject to attachment or provisional attachment shall not have the effect as attachment or provisional attachment because they do not have any existing claims at the time of

Seoul Central District Court 2015Na18472 (Main Office) ( November 19, 2015)

Seoul Central District Court 2015Na38407 (Counterclaim), ( November 19, 2015)

Is 00

Republic of Korea (Jurisdiction: 00 Tax Office)

Seoul Central District Court 2014Kadan5194809 ( January 22, 2015)

October 1, 2015

November 19, 2015

1. The defendant (Counterclaim plaintiff)'s appeal is dismissed.

2. The defendant-Counterclaim plaintiff's counterclaim filed in the trial shall be dismissed;

3. The costs of lawsuit following the filing of an appeal shall be borne by the Defendant (Counterclaim Plaintiff) in total, including the principal lawsuit and counterclaim.

1. Purport of claim

(a) Main claim;

On September 26, 2012, ○○ Construction Co., Ltd. confirmed that the right to claim for payment of deposit money deposited in KRW 99,99,99,999 deposited by Sung-nam District Court was against the Plaintiff (hereinafter referred to as the “Plaintiff”).

(b) Counterclaim;

(1) On April 12, 2012, concluded between the Plaintiff and BBS tons, the assignment contract was revoked, and (2) the Plaintiff did not submit a list of claims for payment of deposit money stated in the separate sheet in paragraphs (1) and (2) and the separate sheet in the separate sheet in the separate sheet in the claim for counter-claim, while the Plaintiff did not submit a list of claims for payment of deposit money stated in paragraph (2) and the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the separate sheet in the judgment of the court of Suwon District Court on September 26, 2012. The Plaintiff transferred the claim for payment of deposit money deposited in 9,99,99, and notified the Republic of Korea (the competent court of Suwon District Court: Suwon Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Deposit in the first instance.

1. Facts of recognition;

A. The ○○ Construction Co., Ltd. (hereinafter referred to as “○○ Construction”) is a contractor of the MFD Construction, and the BBS tons Co., Ltd. (hereinafter referred to as “BS tons”) is a corporation that sewages the part of the tin work during the said construction from ○○ Construction, and the Plaintiff is a sub-subcontractor who re-subcontractors the part of the said tin work again received from BBS tons.

B. On May 12, 2012, the Plaintiff acquired 9,99,999 won (hereinafter “the instant claim”) out of the instant stone construction cost claim against BBSn ○○ Construction (hereinafter “the instant claim”) from BBS tons, and BB tons notified ○ Construction that they transferred the instant claim to the Plaintiff by means of content-certified mail with a fixed date date on the same day, and the said notification reached ○○ Construction on April 13, 2012.

C. Around April 2012, BBS tons transferred KRW 99,99,99, out of the above tin construction bond to J stone Co., Ltd. (hereinafter “J stone”), and notified ○○ Construction in writing with a fixed date, and the above notification reached ○○ Construction on April 17, 2012.

D. However, the co-defendants of the first instance trial and the defendant attached or seized the instant claims as indicated in the following table, and the above provisional attachment decision, the attachment and assignment order, or the attachment notification reached ○○ Construction on each day indicated in the following table.

No.

Types

○ ○ Construction

Service Date

Case Number

Amount of claim

1

Attachment of Claims and

Assignment Order

쇠鹬 Cheong685e uf85eK

April 30, 2012

Seoul Central District Court

000 Other 0000

00 million won or more

00 million won

2

Provisional Seizure of Claim

S

May 29, 2012

Seoul Central District Court

000 Chicago00000

00 million won or more

00 million won

3

Attachment of Claims and

Collection Order

S

May 29, 2012

Seoul Central District Court

000 Other 0000

00 million won

4

Provisional Seizure of Claim

TT

Stock Company

4, 2012

Seoul Central District Court

000 Chicago00000

00 million won

5

Attachment of Claims

August 21, 2012

00.Tax Secretary

00 years of age and -00

00 million won

D. Meanwhile, ○○ Construction bears the obligation to pay the construction cost of KRW 9,99,99 for the unpaid construction cost for BBS tons. However, as to this, BBS tons transferred in violation of a non-assignment agreement to the Plaintiff and J stones. The Plaintiff and J stones’s co-defendants in the first instance trial and the Defendant’s respective seizure, provisional seizure, and seizure notices are concurrent on September 26, 2012 and deposited the deposited amount under BBS tons or J stones’s Article 248(1) of the Civil Execution Act, Article 487 of the Civil Act, and Article 487 of the Civil Act (hereinafter “○○ Construction’s above deposit”) with the Suwon District Court’s Sung-nam branch deposit of KRW 3779 for the said deposit (hereinafter “instant claim to pay the deposit payment claims”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 7 (including each number, if any; hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment on the plaintiff's main claim

A. Determination on the cause of the claim

(1) In the event of competition between the assignment of claims and the provisional seizure, seizure, etc. with respect to the same claim, such competition shall be determined by the order of provisional seizure, the service of the seizure order, and the notification of the assignment of claims with the fixed date (see Supreme Court Decision 93Da24223, Apr. 26, 1994). According to the above facts of recognition, the notification of the assignment of claims with the fixed date of BBS tons that the Plaintiff as the assignee of the instant claim was issued prior to the Defendant’s notification of the assignment of claims (the date after April 13, 2012) (the date after April 13, 2012). Thus, the Plaintiff may exercise the right to claim the payment of deposit against the instant deposit.

(2) Therefore, barring any special circumstance, the right to claim the payment of the instant deposit shall belong to the Plaintiff.

(b)the existence of interest in the verification.

(1) Meanwhile, according to the above facts of recognition, the deposit of this case is a mixed deposit in which the deposit of this case is mixed on the grounds of competition, such as deposit of the relative uncertainty designated as the depositee and provisional seizure of BBS tons, the assignee of the claim, and the plaintiff J stone as the assignee of the claim.

(2) In the case of mixed deposit, the Plaintiff, one of the parties to the deposit, shall submit documents proving that not only the other party to the deposit but also the Defendant, the enforcement creditor, as well as the BBS tons and J stone, the Plaintiff may withdraw the deposited goods (see, e.g., Supreme Court Decision 2011Da84076, Jan. 12, 2012). As such, the Plaintiff, the beneficiary, has the interest in seeking confirmation against the Defendant, the enforcement creditor related to the instant deposit, that the claim for the payment of the deposited goods was filed against the Defendant.

C. Judgment on the defendant's argument

(1) First of all, the Defendant asserts that the instant assignment contract between the Plaintiff and BBS tons is invalid since it is against the special agreement prohibiting the assignment of claims between ○○ Construction and BBS tons and that the Plaintiff, who received a sub-subcontract from BBS tons, was aware of the contents of the said special agreement prohibiting the transfer of claims. Thus, the obligor may set up against the assignee of the instant special agreement with the knowledge of the existence of the said special agreement prohibiting the transfer of claims when the third party acquired the claims from the obligee, or the assignee at gross negligence with the knowledge of the existence of such special agreement. The gross negligence referred to in this context means that the Plaintiff did not know the existence of the special agreement even if it did not pay considerable attention to the extent required for ordinary persons, if it did not know the existence of such special agreement, and the third party’s bad faith or gross negligence is not known to the assignee of the instant special agreement at the time of the transfer of claims (see, e.g., Supreme Court Decision 200Da5336, Jan. 24, 2003).

(2) Next, the Defendant asserts that the instant assignment contract between the Plaintiff and BBS tons was concluded for the purpose of undermining other creditors, and thus, it should be revoked as it constitutes a fraudulent act, and that the instant claim for payment of deposit money should be transferred to BBS tons due to its restitution to its original state, and thus, the instant claim for payment of deposit money can only be filed by means of filing a lawsuit with the court, and cannot be asserted as a means of attack and defense in the lawsuit (see, e.g., Supreme Court Decision 95Da4859, 48605, Mar. 13, 1998). As examined in the determination of the Defendant’s counterclaim claim, the Defendant’s claim for revocation of a fraudulent act is unlawful, as long as it is deemed that the Defendant’s claim for revocation of a fraudulent act is unlawful without any further need to be examined.

D. Sub-determination

Therefore, the Plaintiff has the right to claim the payment of the deposit of this case against the Plaintiff, and the deposit of this case is a mixed deposit with the relative uncertainty deposit and the execution deposit is mixed, and the Plaintiff, the assignee of this case, can receive a judgment from the Defendant, the execution creditor, to confirm that the claim for the payment of the deposit of this case has been filed against the Plaintiff. Accordingly, there is a benefit to seek the confirmation thereof.

3. Judgment on a counterclaim

A. The defendant's assertion

The defendant is a creditor who has a claim of KRW 11,11,11 for total 4 items, including value added tax for the first period of 2011 against BBS tons. The BBS tons transferred the claim of this case to the plaintiff, the only property of which is its own property even though the debts exceed the debts due to the above tax liabilities, etc., which cannot be revoked as a fraudulent act, and the plaintiff has a duty to notify the public official of the Republic of Korea that the transfer contract of this case was revoked.

B. Determination on the legality of the counterclaim brought by the defendant at the trial

(1) A counterclaim in an appellate trial may be filed where there is no possibility of undermining the interests of the other party in the instance of the other party pursuant to Article 412(1) of the Civil Procedure Act, or where consent of the other party is obtained. Here, “where there is no possibility of undermining the interests of the other party in the instance of the other party” refers to the case where the substantial issue constituting the foundation of a counterclaim is sufficiently examined in the first instance court in relation to the cause of the principal claim and the method of defense, and there is no concern that the other party may lose his/her interests in the instance of the first instance (see, e.g., Supreme Court Decision 2005Da20064, Nov. 24,

(2) In light of the above legal principles, the court of first instance examined whether the plaintiff has priority over the right to claim the payment of the deposit money in this case against the defendant and the co-defendants. On February 13, 2015, the defendant filed an appeal on February 17, 2015, which sought the cancellation of the claim on the ground that the above assignment of claim became a fraudulent act after the appeal was filed on February 13, 2015. (3) However, the revocation of fraudulent act asserted by the defendant is limited to the limitation period, the existence of the defendant's claim to be preserved against BBS tons, the existence of the defendant's claim to be preserved against BBS tons, the existence of the liability property of the claim in this case, the intention to harm the plaintiff's interest at the court of first instance, and the plaintiff did not clearly agree to the legality of the counterclaim in this case, and thus, it is unlawful as it does not meet the requirements of Article 412 (1) of the Civil Procedure Act.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is justified, and the judgment of the court of first instance is just, and the defendant's appeal against this is dismissed as it is without merit, and the defendant's counterclaim raised in the court of first instance is unlawful, and it is so decided as per Disposition.