Plaintiff (Attorney Seo-he et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Ho, Attorneys Yang Yang-soo, Counsel for the defendant-appellant)

June 29, 2016

Seoul Central District Court Decision 2015Da123212 Decided February 12, 2016

1. Revocation of a judgment of the first instance;

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

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendants jointly pay to the Plaintiff 36,680,859 won and 9,806,683 won among them, 5% per annum from July 24, 2015 to December 8, 2015, and 15% per annum from the next day to the date of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. On March 19, 2012, the Plaintiff received the claim for the refund of partner deposit against Nonparty 1’s Defendants as Seoul Southern District Court Decision 2012TTTTT 2012TT 4914, and the attachment and collection order (hereinafter “the claim attachment and collection order”) were served on the Defendants.

B. On June 22, 2012, Nonparty 1 filed a lawsuit claiming refund, etc. against the Defendants on the ground that he/she and the Defendants left in the partnership or partnership business relationship (Seoul Central District Court 2012Gahap524777).

C. On June 21, 2013, the above court rendered a judgment dismissing the claim for payment of KRW 183,309,00 among the lawsuit filed by Nonparty 1 and its delay damages on the ground that “the share value to be refunded to Nonparty 1 upon withdrawal from the business on March 4, 2010 is KRW 9,806,683, but Nonparty 1 lost the status as a party to the performance lawsuit within the scope of KRW 183,309,00, which is the claim for seizure and collection order of KRW 183,300, which is the claim for seizure and collection order of KRW 183,309,00,” and the above judgment became final and conclusive.

D. On May 22, 2014, Nonparty 2 received a collection order for the claim for refund due to Nonparty 1’s withdrawal from business in Gwangju District Court Decision 2014TTTTT 8869, and Nonparty 2 received the seizure and collection order for the claim for refund due to Nonparty 1’s withdrawal from business (hereinafter “the second claim seizure and collection order”), and the said order was served on the Defendants.

E. On March 4, 2015, Nonparty 2 filed a claim for collection (Seoul Central District Court 2015Da38536) against the Defendants on the basis of the second claim attachment and collection order, “The Defendant jointly pays 9,806,683 won to Nonparty 2 and 5% per annum from March 5, 2010 to the service date of a duplicate of the complaint, and 20% per annum from the next day to the day of complete payment” (Seoul Central District Court 2015Da38536).

F. On June 24, 2015, the aforementioned lawsuit was pending, and the settlement recommendation decision (hereinafter “the settlement recommendation decision of this case”) was made on June 24, 2015, stating that “the Defendant jointly collected KRW 90,000,000 to the Plaintiff by July 31, 2015, and if the Defendants delay the payment of the said amount, the Defendants shall pay the amount in addition to the damages for delay calculated at the rate of 20% per annum from the date following the date of payment to the date of full payment.” The Defendants deposited KRW 90,000 according to the settlement recommendation decision of this case on July 24, 2015 (Seoul Central District Court Decision 15979, Seoul Central District Court 2015).

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 3, Eul's 2, the purport of the whole pleadings and arguments

2. The assertion and judgment

A. Summary of the parties' arguments

1) Plaintiff

The Defendants are obligated to pay the refund amount of KRW 99,806,683 due to withdrawal from the business and delay damages therefor to Nonparty 1. Since they deposited KRW 90,00,000 among them on July 24, 2015, the Defendants are obligated to pay the remainder of KRW 9,806,683 and delay damages to the Plaintiff.

2) The Defendants

The Plaintiff’s seeking payment exceeding KRW 90,000,00 among the refund claims due to Nonparty 1’s withdrawal from the partnership is against the res judicata effect of the instant decision recommending reconciliation. Therefore, the Plaintiff’s claim cannot be complied with.

B. Determination

1) In a case where a creditor has filed a lawsuit against a third party obligor by exercising a creditor's subrogation right, the judgment is effective only when the debtor has known the fact that a creditor has filed a lawsuit for subrogation for any reason, and in such a case, if another creditor files a lawsuit based on the creditor's subrogation right for the same subject matter of lawsuit, the other creditor becomes res judicata of the previous lawsuit (see Supreme Court Decision 93Da52808 delivered on August 12, 1994). Since the collection lawsuit filed by the creditor subject to the collection order against the third party is identical in nature to that of the third party, the above legal principle also applies to the collection lawsuit.

2) In light of the above legal principles, as seen earlier, the facts that Nonparty 1 filed a collection suit against the Defendants and the decision of recommending the settlement of this case became final and conclusive are as follows. The records in the evidence No. 2, No. 6, No. 7, 11, and No. 18 are as follows. ① Nonparty 1 entered into a contract with the Defendants as the representative of Nonparty 2 with the consent of Nonparty 2, who is the mother of July 18, 2008, as the representative of Nonparty 2, and entered into an agreement with the Defendants as a joint guarantor with the Defendants. ② Nonparty 2 delegated Nonparty 1 to Nonparty 1 to file a lawsuit against the Defendants as to the settlement or a business agreement, and accordingly, Nonparty 1 brought an action against the Defendants (Seoul District Court Decision No. 2009Da96286, Sept. 18, 200), Nonparty 2 and Nonparty 1 were to have an economic claim for the return of deposit deposit against the Defendants, and Nonparty 1 and Nonparty 2 were to have the Defendants 1 and Nonparty 2.

3) The Defendants deposited the total amount of KRW 90 million on July 24, 2015, both of the refund claims against the Defendants by Nonparty 1 were extinguished. The Plaintiff cannot assert that the refund claims against the Defendants by Nonparty 1 exceed KRW 90 million against the res judicata effect of the instant decision recommending reconciliation. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed due to the lack of reason, and the judgment of the court of first instance, which has different conclusions, is unfair, and all of the claims against the defendants are dismissed. It is so decided as per Disposition.

Judges Lee J-young (Presiding Judge)