A notification of transfer may not be set up against the Republic of Korea unless the notification of transfer takes place after the seizure of the Republic of Korea.

In the assignment of claims, the transfer of claims itself is performed only by the declaration of intention between the transferor and the transferee, but the transferee who fails to meet the requisite for setting up against him/her is only unable to claim the claims to the debtor or

Article 450 of the Civil Act

2013 group 92642 Collections

Plaintiff (Successor Intervenor)

KimA (○○○○ Incorporated Company)

Korea

November 14, 2014

December 12, 2014

1. The plaintiff's successor's claim is dismissed.

2. The costs of lawsuit shall be borne by the intervenor succeeding to the plaintiff.

The defendant shall pay to the plaintiff's successor 78,995,461 won and 5% interest per annum from June 1, 2012 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

가. 서울 OO구 OO동 OO아파트 OOOO호(이하 '이 사건 부동산'이라고 한다)의 소유자인 소외 ★★★은 2005. 1. 24. AAA은행과 채권최고액 158,400,000원, 채무자 ★★★, 근저당권자 AAA은행으로 된 근저당권설정계약을 체결하고 서울남부지방법원 구로등기소 2005. 1. 24. 접수 제5916호로 AAA은행 앞으로 근저당권설정등기를 마쳐주었으며, 2006. 12. 13. 다시 AAA은행과 채권최고액 18,000,000원, 채무자 ★★★, 근저당권자 AAA은행으로 된 근저당권설정계약을 체결하고, 서울남부지방법원 구로등기소 2006. 12. 14. 접수 제116044호로 AAA은행 앞으로 근저당권설정등기를 마쳐주었다.

나. ★★★은 2007. 12. 26. 이 사건 부동산에 관하여 채무자 ★★★, 근저당권자 ◎◎◎, 채권최고액 120,000,000원으로 하여 근저당권설정계약을 체결하였고, 서울남부지방법원 구로등기소 2007. 12. 26. 접수 제106963호로 ◎◎◎ 앞으로 근저당권설정등기(이하 '이 사건 근저당권'이라고 한다)를 마주었다.

C. Meanwhile, the Republic of Korea (U.S.) who is a tax claim of the dedicated deposit, has completed the seizure registration of each of the instant collective security claims, on August 27, 2009; August 13, 2010; May 7, 2010; July 15, 2010; and each of the instant collective security claims, on September 2, 2009; and on May 19, 2010; and on May 13, 2010; and on July 19, 2010; and on the completion of the seizure registration of the instant real estate.

D. On September 9, 2011, AA Bank, the first priority mortgagee of the instant real estate, obtained a voluntary decision to commence auction (hereinafter “instant auction procedure”) from the Seoul Southern District Court on September 9, 201 with respect to the instant real estate, and BB Company (hereinafter “B Company”) received a claim against the collateral security interest of AA Bank.

마. ◎◎◎은 2007. 12. 26. ◎◎◎의 ★★★에 대한 이 사건 근저당권부 채권을 원고 승계참가인에게 양도(이하 '이 사건 채권양도약정'이라고 한다)하였는데, 그 채권양도의 통지를 2012. 2. 13. ★★★에게 하였고, 이 사건 근저당권에 대한 근저당권이전등기는 2012. 4. 3. 경료하였다.

F. Meanwhile, the instant real estate was sold on April 23, 2012 in the said voluntary auction procedure.

G. On May 9, 2012, the Plaintiff (Withdrawal) issued a payment order (hereinafter “instant payment order”) from the Seoul Central District Court to the effect that “the Plaintiff’s succeeding intervenor would pay KRW 300,000,000 to the Plaintiff (Withdrawal) KimA annually from August 9, 2009 to the service date of the instant payment order, 6% per annum, and 20% per annum from the next day to the date of full payment.”

H. On May 17, 2012, the Plaintiff (Withdrawal) KimA received, at the auction procedure of the instant case, a claim against the Seoul Central District Court for a claim regarding the claim based on the instant payment order (the claim amounting to KRW 350,482,340) and the claim against the Plaintiff’s succeeding intervenor was issued a seizure and collection order (hereinafter “instant claim seizure and collection order”), and the said collection order was served on the Defendant, the garnishee, who is the garnishee, on May 22, 2012.

I. On May 24, 2012, the Seoul Southern District Court: (a) distributed KRW 176,400,000 to the non-party company on the date of distribution on May 24, 2012; (b) distributed KRW 78,995,461 to the Plaintiff (ex officio) who is the right to seize and collect the Plaintiff’s succeeding intervenor; and (c) on the ground that the seizure of the instant collateral security claims by the Republic of Korea, a tax payer, was done earlier than the acquisition of the instant collateral security claims by the Plaintiff’s succeeding intervenor, as described in the foregoing sub-paragraph (c), the said dividends amounting to KRW 78,995,461 should be distributed to the non-party company; (d) the Plaintiff’s succeeding intervenor raised an objection to the distribution within the prescribed period; and (e) the said court deposited the amount to be distributed to the Plaintiff’s succeeding intervenor with the Seoul Southern Southern District Court deposited as the Seoul Southern District Court on June 1, 2012.

(j) Meanwhile, on September 11, 2013, the Plaintiff (Withdrawal) submitted to the above court an application for the entire cancellation of seizure and waiver of collection transfer regarding the seizure and collection order of the instant claim, and the said notification of cancellation of execution reached September 17, 2013 to the Republic of Korea, the garnishee.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, Gap 2, 4, 5, 21, 22, Eul 1, 2, 5, 8, and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's successor's assertion

The attachment of the claim of the instant right to collateral security was made on September 2, 2009, and the lower court transferred the claim of the instant right to collateral security to the Plaintiff’s succeeding intervenor on December 26, 2007, which was the previous date, and thus, the Korea’s attachment of the instant right to collateral security cannot be asserted against the Plaintiff’s succeeding intervenor. Therefore, the Defendant is obliged to pay the Plaintiff’s succeeding intervenor the dividend amounting to KRW 78,95,461 and delay damages incurred therefrom during the instant auction procedure.

2) The defendant's assertion

Even if the Intervenor succeeded to the Plaintiff received the instant claim on December 26, 2006 from the lower court, the time when the said claim was notified to the obligor on the instant claim on the part of the Republic of Korea (U.S.) is subsequent to the seizure of the instant claim on the part of the Republic of Korea (U.S.). Since the instant registration of the transfer of the instant claim on the part of the instant claim was made after the seizure of the instant claim on the part of the Republic of Korea (U.S.), the seizure of the Republic of Korea (U.S.) takes precedence over the transfer of the instant claim on the part of the Korea (U.S.), the Plaintiff’s assertion is without merit.

B. Determination

1) The transfer of claims itself is performed by means of the expression of intent between the transferor and the transferee. However, the transferee who fails to satisfy the requisite for setting up against the obligor cannot assert the claim against the obligor or a third party (Supreme Court Decision 2000Da1006 Decided December 12, 200, Supreme Court Decision 2004Da29279 Decided June 23, 2005).

2) The fact that the assignment of claims in this case was made prior to the seizure of the Republic of Korea (the paper duty of the Disposition Office) is as seen earlier, but the fact that the notification of the assignment of claims was made subsequent to the seizure of the Republic of Korea (the paper duty of the Disposition Office) is also identical as seen earlier. Accordingly, the Plaintiff’s successor merely constitutes the assignee of claims who did not meet the requisite for counterclaim by the seizure of the Republic of Korea (the paper duty of the Disposition Office), and thus, the Plaintiff’s assertion by the Plaintiff’s successor cannot be asserted against the Republic of Korea as a third party, a third

3. Conclusion

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