Plaintiff (Withdrawal) Limited Liability Company

Succession Intervenor Co., Ltd. (Law Firm Gyeongwon, Attorneys Hho-ho et al., Counsel for defendant-appellant)

Defendant (Attorney Dong-dong et al., Counsel for the defendant-appellant)

April 22, 2005

1. The defendant shall pay to the plaintiff successor 87,438,500 won and 6% per annum from July 27, 2001 to August 5, 2003 and 20% per annum from the next day to the date of full payment.

2. The plaintiff's successor's remaining primary claims and preliminary claims are dismissed.

3. The costs of the lawsuit shall be five minutes, and three shall be borne by the intervenor succeeding to the plaintiff, and the remainder by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant will pay to the plaintiff's successor 218,317,443 won and 6% interest per annum from July 27, 2001 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

The following facts may be acknowledged in the absence of dispute between the parties, or in the descriptions of Gap evidence 1 through 5, Gap evidence 15, Eul evidence 1 and 2, together with the purport of all pleadings:

A. Non-party 4’s credit safe: (a) a collective security (right to collateral security (right to collateral security on October 14, 1993; maximum debt amount of KRW 450,000,00), which was created with 1,487.6 square meters in large exhibition, 00,07, and 888.56 square meters in light of its ground reinforced concrete structure, as a joint security (hereinafter “the instant building”); (b) a collateral for sale of machinery and equipment, and all parts of equipment, etc., accompanied by 12 in the instant building as a physical security, was leased to Non-party 2 on December 13, 1996 at a rate of 16.2% per annum and 21% per annum; and (c) a joint guarantee was granted to Non-party 2 at the time of the instant building’s loan.

B. On January 29, 199, the above non-party 1 entered into an insurance contract with the defendant (hereinafter referred to as the "international fire marine insurance company") on the condition that the insured is the above non-party 1, 2, and 5. The subject matter of the insurance is all the building of this case, its interior equipment, interior equipment, interior test equipment, and movable property, and the total purchase amount of the insurance amount is KRW 1,020,000 (the building of this case: KRW 400,000,000, machinery equipment and leisure equipment: KRW 350,000,000, indoor interior interior test equipment: KRW 200,000,000, and KRW 70,000,000: January 31, 199 to January 31, 200.

C. However, on March 4, 1999, when a fire occurred inside the building of this case during the above insurance period, and the part of the building of this case and the machinery, artificial equipment, equipment, and fixtures inside the building of this case were destroyed, and the above non-party 1, 2, and 5, the insured of the above insurance contract, were 509,29,297,000 won against the defendant (=the part of the building of this case 174,87,000 won + the part of the machinery and equipment of 219,410,000 won + the part of the artificial equipment and equipment of 107,827,000 won + the part of the artificial equipment and equipment of 107,183,000 won for each share of insurance money (the right holder shall be determined on February 13, 204, as specific amount of money and the right holder accrued thereafter).

D. Meanwhile, on November 19, 198, according to the FSC's decision to transfer a contract, Nonparty 4 transferred to Nonparty 6 the status of creditor under the above loan agreement and the collateral security right and the collateral security right for the above credit to Nonparty 4. Nonparty 6 applied for an auction of real estate for the remaining portion of the instant building on December 2, 1999, immediately after the fire occurred in the instant building. Nonparty 2 applied for an auction of real estate on January 19, 2001, where Nonparty 2 failed to pay the above loan interest and interest, and applied for an auction of real estate for the remaining portion of the instant building on January 19, 2001.

E. After that, on November 28, 2000, the non-party 6 transferred the principal and interest of the above loan to the Plaintiff according to the contract for transfer of securitization assets, the collateral security right and the sales security right accordingly.

F. On July 25, 2001, the Plaintiff was issued a claim attachment and assignment order based on the exercise of subrogation right (hereinafter “instant assignment order”) with respect to the instant insurance claim as the obligor Nonparty 1, 2, 3 obligor, Defendant, claim amount of KRW 218,317,443, Hongsung Branch of the Daejeon District Court (Seoul District Court Decision 2001Ma767, and the said order was served on the Defendant, who is the garnishee, and became final and conclusive on December 23, 2001.

G. After that, on October 31, 2003, the Plaintiff transferred all of the above principal and interest claims, collateral security rights, and other rights incidental thereto to the Plaintiff’s successor. On November 13, 2003, the Plaintiff notified the Plaintiff’s successor of the assignment of each obligation to Nonparty 2, the principal debtor of the above principal and interest, and Nonparty 1 and 5, the joint guarantor, respectively.

2. Part of the primary claim; and

A. Determination on the cause of the claim

According to the above facts of recognition, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff’s succeeding intervenor the total amount of KRW 218,317,443 according to the assignment order of this case and delay damages therefor.

B. Defendant’s defense as to Nonparty 2’s insurance claim

The Defendant asserted that the part of the claim for insurance money against the Defendant of Nonparty 2, out of the entire claim under the instant assignment order, was transferred to another party before the issuance of the instant assignment order, and thus, this part of the instant assignment order is null and void, and even if not, the statute of limitations expires.

In full view of the overall purport of the pleadings in evidence Nos. 1 and 2, Nonparty 6’s safe obtained an order of seizure and all of the claims based on subrogation right as a mortgagee of the building in relation to KRW 424,51,780 of the claim amount against Nonparty 2 as the obligor Nonparty 2 and Nonparty 3, on March 27, 2000, Hongsung Branch Branch of Daejeon District Court Red-ro342, which was before the transfer of the above principal and interest of loan and other security rights, and KRW 424,51,780 of the claim amount against the Defendant of Nonparty 2 as the obligor, and the above order was delivered to the Defendant at that time, and confirmed that the assignment order became final and conclusive to the Defendant. As such, the entire claim is transferred to the obligee upon the entry into force of the assignment order. Accordingly, the assignment order overlaps with the assignment order No. 2, which was issued thereafter, and thus, is null and void.

C. Defendant’s defense as to Nonparty 1’s insurance claim amount

The Defendant already extinguished the prescription period regarding the claim against the Defendant of the above non-party 1 among the entire claim under the assignment order of the instant No. 1, and ② the sale security is not acknowledged as an alternative security, so the assignment order of the instant case is effective only to the part based on subrogation based on the right to collateral security against the instant building, and ③ even if the assignment order of the instant No. 1 was effective not only to the right to collateral security against the instant building, but also to the part issued based on the sale security against machinery, equipment, and backs, etc., as to the part exceeding the insurance money amount due to the fire of the instant part of the building, the Defendant asserts that the payment was extinguished as a repayment to the quasi-Possessor since it had already been made to the above non-party 1 without any negligence in accordance with the final judgment, and that the Plaintiff’s claim

(1) Determination on whether the statute of limitations has expired

However, barring any special circumstance, the extinctive prescription should run from the time of the occurrence of the insured event. The fact that the instant lawsuit was filed on July 30, 2003, which was 2 years after the lapse of 2 years from the time of the occurrence of the insured event, is clear in records, since the extinctive prescription is complete unless it is exercised for 2 years under Article 62 of the Commercial Act.

However, in full view of the statements in Gap evidence Nos. 7 and 10, the above non-party Nos. 1 submitted various claims against the non-party No. 1 corporation on March 10, 1999, immediately after the occurrence of the insurance accident in this case. ② The above non-party No. 1 filed a lawsuit against the defendant on November 6, 199, Hongsung Branch of Daejeon District Court 99Kahap2093, which included the above non-party No. 2's right to claim the insurance claim in this case. ③ The plaintiff received the assignment order in this case on July 25, 2001, which was pending in the appellate trial in this case. According to the above facts of recognition, the claims against the defendant No. 1 were interrupted due to the non-party No. 1's claim against the defendant, and this part of the claim in this case's assignment order was not identical to the plaintiff.

(2) Determination on the scope of assignment order

Comprehensively taking account of the overall purport of arguments in evidence evidence Nos. 1, 2, and 17, and evidence No. 5, ① 12 string of the building of this case and its ancillary machinery and equipment, etc. may be relocated and installed to other buildings. The building of this case is separate and independent property. ② The above non-party 1, 2, and the non-party 4 credit safe company concluded the sale security contract of this case, ② the above non-party 1 and 2 bear the non-party 4 credit safe or will bear the above 12 string of loan obligation, and the ownership of the machinery and equipment and equipment of the non-party 4, and subsequent machinery and equipment, etc. may be transferred to the non-party 4, and if the non-party 4 was unable to repay debts, the non-party 1 and the non-party 4 were assigned to the non-party 1 and the non-party 4 were assigned to the non-party 4 and the non-party 4 were assigned to the non-party 1 and the non-party 2 claim assignment order of this case.

According to the above facts, although the above security contract between the credit trust company of the non-party 4 and the non-party 1 and the above non-party 2 is written as "sale security", in substance, it is not in the form of sale, such as the promise for repurchase or resale, but in the form of monetary loan, it has the nature of transfer for security in that it provides a security for the security for the security for the security for the security for the security for the obligation. As such, in the case of the above transfer for security as mentioned above, if the collateral is destroyed due to a fire, it shall be interpreted that the obligation to claim the insurance has the effect continuously, and it shall conform to the principle of subrogation for the security interest (see Supreme Court Decision 74Da2215, Dec. 30

Therefore, it is reasonable to view that the assignment order of the first assignment order of this case extends to the whole insurance claims against the building of this case and the object of sale security, and therefore, the defendant's objection to this issue is without merit.

(3) Performance to quasi-Possessor of the claim

In full view of the purport of the arguments in Gap evidence Nos. 12, 13, 14 and evidence No. 2, (1) the above non-party 1 filed a lawsuit against the defendant on Nov. 6, 199 Gohap 9-2093, which included the above non-party 2's insurance claim. (2) The appellate court of Daejeon High Court No. 2000Na425, which is the above appellate court of the case, ordered the defendant to sell the above insurance money to the plaintiff 1, 254,648,50 (the above 1.C. of 1. of this case) and the above 1.00 won (the above 1.1/2 of the shares of non-party 1), but the defendant ordered the defendant to sell the above insurance money to the non-party 2 and the non-party 2's claim against the non-party 4 of this case on the ground that the non-party 2 had been ordered to sell the above insurance money to the plaintiff 509, 297,29, and 371 of Hong High Court.

On the other hand, the first assignment order of this case was issued on the basis of the right to collateral security and the right to sell collateral security of this case, and thus the claim amount occurred on the whole amount. However, as to the insurance money amount exceeding the above 87,438,500 won (hereinafter "the above excess portion"), the decision was rendered that the defendant would pay the above non-party 1 even though the defendant asserted that he had been fully paid to the plaintiff in the previous lawsuit. In accordance with the purport of the above decision, the defendant paid the above non-party 1, and as long as the judgment of the above appellate court became final and conclusive upon dismissal of appeal in the subsequent appellate court, it was believed that the creditor of the above excess portion was the above non-party 1 and there was no negligence in trust. Accordingly, the defendant's defense that the above excess portion was extinguished on the ground that the above excess portion was valid on the non-party 1 as the repayment against the non-party 1 of this case's claim is justified (the plaintiff's assertion that the above excess portion was paid to the above non-party 1 before the previous lawsuit becomes final and thus dismissed.

(d) Conclusion

Thus, the defendant is obligated to pay to the plaintiff 87,438,500 won with 6% per annum under the Commercial Act from July 27, 2001 to the delivery date of a copy of the complaint of this case from July 27, 2001 and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the full payment date.

3. Determination on the conjunctive claim

The Plaintiff’s succeeding intervenor sought the payment of the amount stated in the purport of the claim pursuant to the assignment order of this case as preliminaryly pursuant to the assignment order of this case. As such, the Plaintiff’s succeeding intervenor sought the payment of the amount stated in the purport of the claim on March 25, 2000 by the Daejeon District Court Red Branch of Daejeon District Court KRW 2000taro342 on March 25, 200, and Nonparty 2, the obligor Nonparty 3 obligor, the Defendant, and the claim amount of KRW 424,51,780 on the insurance claim against the Defendant by the above non-party 2, who received the attachment order

In regard to this, the defendant's defense that this part of the insurance claim has expired by prescription. Thus, the prescription period of the insurance claim against the defendant of the non-party 2 shall expire if it is not exercised within two years pursuant to Article 662 of the Commercial Act. Since the insurance claim can be exercised from the time when the occurrence of the insurance accident occurs, the prescription period shall commence from the time when the insurance accident occurred, barring any special circumstances. Thus, it is evident in the record that the plaintiff is seeking for adding the assignment order of the non-party 2 to the conjunctive claim only after the lapse of two years from the date of the occurrence of the insurance accident of the case. Thus, the plaintiff's claim against the defendant of the non-party 2 had already expired by prescription.

In this regard, the Plaintiff’s successor asserted that the statute of limitations was interrupted because Nonparty 1 was delegated by Nonparty 2 to exercise his right or exercised Nonparty 2’s right to claim against the Defendant. However, as the ground for interruption of the statute of limitations refers to the claimant’s assertion of his right as the ground for interruption of the statute of limitations. Thus, even if Nonparty 1 exercised Nonparty 2’s right to claim and filed a judicial claim without authority, this cannot be deemed as a ground for interruption of the statute of limitations. Therefore, the Plaintiff’s successor

4. Conclusion

Therefore, the plaintiff's primary claim of this case is accepted within the scope of the above recognition, and the remaining primary claim and conjunctive claim are dismissed as they are without merit. It is so decided as per Disposition.

Judges Gangnam-gu (Presiding Judge) Kim Jong-ri