Japan Corporation Pucom (Law Firm Maritime & Law, Attorney Park Hun-hwan, Counsel for the plaintiff-appellant)

J. E. E. E. E. E. E. E.E. (Law Firm Barun, Attorneys Park Jong-sung et al., Counsel for the plaintiff-appellant

August 22, 2014

1. The defendant shall pay to the plaintiff 11,978,187 won with 5% interest per annum from February 25, 2009 to September 19, 2014, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. 19/20 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 690,000,000 won with 5% interest per annum from February 25, 2009 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. On June 26, 2008, the Plaintiff issued a notarial deed with executory force (No. 249 of 2008, a notary public of a law firm friendly, No. 2008; hereinafter “notarial deed of this case”) pursuant to a promissory note of KRW 3,683,521,94 on June 26, 2008, the issue date of which is June 26, 2008.

B. On June 25, 2008, the Defendant: (a) prepared a MOU to acquire all assets of Cho Inteex No. 2 factory and Cho Inteex, a subsidiary company, on July 2, 2008; and (b) entered into a contract on July 25, 2008 to modify the subject matter and scope of transfer; and (c) made a contract on July 25, 2008, on the part of the method of payment of transfer proceeds; and (d) finally finalized transfer contract (hereinafter “instant transfer contract”).

The purpose of this Agreement is to acquire all the physical facilities offered to the KTTTex, five hundred percent (including two factories and five thousand KTTex), and all other specific assets agreed between the parties hereunder. The object of this Agreement is 00,000,000,000,000,000 won and 4,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,00,00,00

C. According to Articles 5 and 5 of the Assignment Agreement of this case and Article 5 of this Agreement of July 2, 2008, the defendant shall pay 400 million won to KTTTex with the proceeds of the transfer of 2 factory of this case, and the defendant shall pay 400 million won to KTTex in four installments, on July 2, 2008, the down payment of 40 million won, on July 3, 2008, the intermediate payment of 40 million won, and the intermediate payment of 160 million won on August 4, 2008, and the balance of 160 million won on August 30, 2008.

D. The Defendant directly paid KRW 110,000,000 to the acquisition price of the second factory of Cho Tech as follows. The Defendant agreed to offset the amount of the claim that the third party obligor acquired from Cho Tech paid to the account of Cho Tech, the transferor, or the sum of the amount that the Defendant subrogated for the obligations of Cho Tech, against the Defendant’s claim for return of unjust enrichment against Cho Tech, the amount of KRW 319,49,403, which the Defendant subrogated for the obligations of Cho Tech, against the Defendant of Cho Tech’s transfer price claim.

(1) On July 3, 2008, 40,000 intermediate payment 40,000 on July 3, 2008, 120. 40,000 intermediate payment 40,00 on July 3, 2008, 31, 2008, 224,81, 2384. 8. 8. 9, 208, 209, 208, 3. 9, 29, 208, 3. 9, 208, 4. 9, 208, 208, 209, 3. 9, 208, 4. 9, 208, 3. 9, 208, 208, 9. 9, 206, 208, 9. 1. 3, 2008

D. On August 28, 2008, the Plaintiff received an order for seizure and assignment of claims against Suwon District Court 2008TTTT to the Defendant on the basis of the authentic copy of the instant authentic deed. The order was served on September 2, 2008 by the Defendant on September 22, 2008, and became final and conclusive on September 11, 2008. On September 22, 2008, the Plaintiff received an order for seizure and assignment of claims against Suwon District Court 2008TTT as to “40 million won among the claims for real estate sale and business transfer and acquisition of business transfer against the Defendant,” and the above order was finalized on September 29, 2008 by serving on the Defendant on September 29, 2008.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 1 to 10 (including each number), the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

The Defendant is obligated to pay KRW 800 million to Choteex pursuant to the instant transfer contract, and the Defendant is obligated to pay KRW 110 million among them, and the Plaintiff is obligated to pay KRW 690 million for the claim for the transfer price of Choteex as of August 28, 2008, and September 22, 2008, with the Plaintiff’s failure to pay KRW 690 million for the claim for the transfer price of Choteex. Therefore, the Defendant is obligated to pay the Plaintiff the amount of KRW 690 million for the payment of the unpaid transfer price.

B. Determination

The entire amount of claims shall be monetary claims with face value, and the entire amount of claims for the delivery of fluids or for the transfer of rights is not ordered (Article 245 of the Civil Execution Act). According to the above acknowledged facts, according to the transfer contract of this case, which was finally revised on July 25, 2008, in accordance with the transfer contract of this case, where Cho JinTTEX has against the defendant, the entire amount of claims subject to an assignment order is only 400 million won.

Therefore, barring any special circumstance, the Defendant is obligated to pay the Plaintiff the full amount of KRW 400 million and damages for delay thereof in accordance with the assignment order dated August 28, 2008 (hereinafter “instant assignment order”).

In regard to the assignment order of this case, the Defendant indicated the claim for seizure and assignment as “the amount up to the claim amount, from among the claim for real estate purchase price claims that the obligor holds against the third party obligor.” Since the Defendant’s obligation to Cho Jae-in is not the claim for real estate sale price, the above claim attachment and assignment order is invalid. However, if the claim’s indication, which is the object of the seizure and assignment order, is, inter alia, stated to the extent that it could enable the third party to distinguish between other claims, and does not reach the extent of undermining the recognition of identity, the seizure and assignment order shall be deemed valid (see Supreme Court Decisions 2010Da89036, Apr. 28, 201; 65Da1699, Oct. 26, 1965). According to the above recognition, it seems clear that the assignment order of this case against the Defendant was subject to the assignment order of real estate, which is the object of the transfer contract of this case, and it appears that it was an assignment order of real estate, which is an object of the transfer order of this case’s.

Therefore, the ground alleged by the defendant alone does not reach the extent that the assignment order does not interfere with the recognition of the identity of the entire claim, and the defendant's above assertion is without merit.

3. Judgment on the defendant's defense

A. Judgment on the defense of performance

The defendant's defense that prior to the effectiveness of the assignment order of this case had already been extinguished by the defendant's repayment. Thus, according to the above facts of recognition, the defendant's above facts of recognition are acknowledged as having already been paid to Cho Inteex the amount of KRW 40 million as of July 2, 2008, and KRW 30 million as of July 3, 2008, and the amount of KRW 110 million as of August 11, 2008, among the entire entire claims against which the assignment order of this case had already arrived at the defendant and became effective before September 2, 2008. The defendant's defense is justified.

B. Determination as to the counterclaim of offset

The defendant defense that the remainder of the assignment order of this case was set off against the defendant's claim against the defendant's Cho Kon and extinguished both before the assignment order of this case takes effect.

Article 498 of the Civil Act provides that "a garnishee who has been ordered to prohibit payment shall not set up against any creditor who has applied for the order any defense against set-off by the claim subsequently acquired." In light of the purport of the above provision, the purpose and function of the set-off system, and the interests of the relevant parties in cases where a garnishee who has been ordered to seize a claim has an opposing claim against a debtor, etc., in order to oppose an execution creditor by set-off, if a garnishee who has been ordered to seize a claim has an opposing claim against the execution creditor, the amount of the opposing claim is set-off at the time of the effectiveness of the seizure, or if the repayment period of the opposing claim (Automatic claim) at that time has not yet arrived, it shall arrive at the same time as or earlier than the repayment period of the seized claim (see, e.g., Supreme Court en banc Decision 2011Da45

According to the above facts, since the defendant's claim for return of unjust enrichment or claim for indemnity against Cho Inteex, which is the automatic claim of the set-off agreement No. 3 and 4 of the above set-off table No. 3 and the above set-off agreement had already been concluded before the entry into force of the assignment order of this case, and the set-off agreement No. 6 and 7 of the above table was concluded after the entry into force of the assignment order of this case, it is acknowledged that the defendant's claim for return of unjust enrichment against Choteex, which is the automatic claim of the above set-off agreement, had already been set-off on the same day as of August 4, 2008, August 19, 2008, and September 1, 2008, 278,021,813 of the transfer price claim of KRW 400 million, which is the entire claim of the assignment order of this case, was retroactively set-off on the same day within the scope of the defendant's claim for reimbursement.

C. Sub-committee

Therefore, among the entire claim 400 million won of the assignment order of this case, KRW 388,021,813 ( KRW 100 million + KRW 278,021,813) is deemed to have already ceased to exist due to repayment or offset at the time when the assignment order of this case became effective. Thus, the assignment order of this case is valid only within the extent of KRW 11,978,187 ( KRW 48,021,813).

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1,978,187 won, the remaining amount of the transfer price of this case, and damages for delay at each rate of 5% per annum under the Civil Act from February 25, 2009 to September 19, 2014, the date following the day when the assignment order was delivered to the defendant as requested by the plaintiff, and from February 25, 2009, the day after the day when the assignment order was delivered to the defendant, to September 19, 2014, which is appropriate for the defendant to dispute as to the existence and scope of the obligation, and 20% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings from the next day to the day when the assignment order was fully paid. Therefore, the plaintiff's claim is justified within the above scope of recognition.

Judges Cho Jong-young (Presiding Judge)