[1] Whether the transferor of a claim may take measures to preserve the provisional seizure, etc. of a claim against a third party debtor before setting up a requisite to set up against the obligor after the assignment of claim (affirmative), and in cases where the transferor of a claim receives the distribution in the distribution procedure based on such provisional seizure of claim, whether the distribution is valid

[2] In a case where the transferee of a bond fails to meet the requirements for setting up against the obligor, whether the transferee of the bond can assert the acquisition of the bond (negative)

[3] In a case where Gap corporation transferred Eul corporation's claims to Eul corporation to Eul corporation, and attached Eul corporation's claims to Byung corporation prior to satisfying the requirements for setting up against the assignment of claims and received dividends in the provisional seizure procedure, Eul bank filed a lawsuit of demurrer against the distribution against Eul corporation, and Eul corporation, which met the requirements for setting up against the assignment of claims during the course of lawsuit, filed a lawsuit of demurrer against the transfer of claims, the case affirming the judgment below that Eul corporation has the right to be succeeded to the lawsuit of demurrer against the distribution and received dividends as the successor of Eul corporation, the transferor of claims, as the transferee of claims, only after satisfying the requirements for setting up against the assignment of claims, and thus, the above application for intervention

[4] In a case where the creditor provisionally attached the creditor's claim against the third debtor for the preservation of the creditor's claim, whether the interruption of extinctive prescription takes effect against the creditor's claim even if the provisional seizure is not notified to the debtor (affirmative)

[1] Article 450 of the Civil Act / [2] Article 450 of the Civil Act / [3] Article 450 of the Civil Act, Article 81 of the Civil Procedure Act / [4] Article 176 of the

[1] Supreme Court Decision 2008Du20109 Decided February 12, 2009 (Gong2009Sang, 337) / [2] Supreme Court Decision 90Meu2762 Decided November 27, 1990 (Gong1991, 225) Supreme Court Decision 90Da9452, 9469 Decided August 18, 1992 (Gong192, 2729) / [4] Supreme Court Decision 201Da108231 Decided April 26, 2012

Korea Exchange Savings Bank (formerly: Newly Inserted by Act No. 1013, Feb. 1, 201)

Samsan Co., Ltd. (Attorney Seo-sik et al., Counsel for defendant-appellant)

Construction Co., Ltd.

[Defendant-Appellee] Y&D Co., Ltd. (Law Firm Jung-sung, Attorney Park Young-young)

Seoul High Court Decision 2013Na37922 decided January 13, 2016

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Since the transferor of a claim before the requisites for setting up against the assignment of claim are still in the status of creditor in relation to the debtor, it is possible to take measures to preserve the debtor's claim against the third debtor, such as provisional seizure of claim. In such cases, if the transferor of a claim has received the distribution in the distribution procedure based on provisional seizure of claim, it is reasonable to view that such distribution is valid (see Supreme Court Decision 2008Du20109, Feb. 12, 200

B. The record of this case reveals the following facts.

1) Around December 2006, the Defendant entered into a deed of beneficial rights transfer (hereinafter “instant contract on the assignment of claims”) with the Plaintiff’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s supplementary intervenor’s transfer of the construction cost and the loan claim against Samsan Co., Ltd. (hereinafter “YT”). The Defendant and the succeeding intervenor agreed to perform the Defendant’s transfer of rights after the completion of the distribution of dividends under the deed of beneficial rights.

2) While the notification of the assignment of claims under the instant assignment contract has not been made, the Defendant completed the provisional seizure of claims amounting to KRW 16,591,634,423 (hereinafter “provisional seizure of claims”) regarding claims under the trust contract held against the K non-real estate trust company (hereinafter “K non-real estate trust”) as a beneficiary on May 16, 208.

3) Meanwhile, as a result of the disposal and settlement of real estate held in trust, the K non-real estate trust deposited the remaining amount as of June 18, 2009 as the Seoul Central District Court No. 10716, 2009, on the ground that there were multiple claims provisional seizure, claims seizure, and collection orders, etc.

4) The Seoul Central District Court (Seoul Central District Court 2009Ma1978) commenced the distribution procedure with respect to the said deposit (hereinafter “instant distribution procedure”), and the distribution schedule was formulated, based on the provisional seizure of the instant claim, to distribute the Defendant KRW 998,015,185 to the Defendant (hereinafter “instant distribution schedule”).

5) After that, in a civil suit filed by the Defendant against Samsan, on January 6, 2012, Samsan filed a statement of grounds of appeal stating that “The Defendant’s claim should be dismissed, as the Defendant lost its status as a creditor by transferring his claim against Samsan to the succeeding intervenor,” and that the said statement of grounds of appeal reached the Defendant around that time.

C. We examine in light of the legal principles as seen earlier. The submission of the appellate brief dated January 6, 2012 by Samchio may be deemed to have consented to the assignment of claims under the instant assignment contract. It is reasonable to view that the Defendant still has the status of an obligee in relation to Samchio, before obtaining such consent. Therefore, the Defendant cannot be deemed to constitute a provisional seizure based on the provisional seizure against the instant claim under the condition that there is no preserved claim. Furthermore, the Defendant did not err by misapprehending the legal principles as to the validity of the provisional seizure against the instant claim and the Defendant’s entitlement to dividends.

2. Regarding ground of appeal No. 2

A. If the assignee fails to meet the requirements for setting up against the obligor such as notification by the transferor or consent by the obligor, the assignee cannot claim any right against the obligor as there is no legal relationship between the obligor and the obligor (see Supreme Court Decision 90Da9452, 9469, Aug. 18, 1992, etc.). The assignee of the claim can claim the assignee’s assignment notification to the obligor or the obligor’s acceptance of the assignment notification by the transferor (see Supreme Court Decision 90Meu27662, Nov. 27, 1990).

B. According to the records of this case, the Defendant and the succeeding intervenor concluded the instant transfer of claim prior to the commencement of the instant distribution procedure, and filed a lawsuit of demurrer against the instant distribution while failing to satisfy the requirements for counterclaim, and filed a petition for intervention in the instant transfer with the succeeding intervenor, asserting that the succeeding intervenor acquired the claim against Samsan, by submitting the appellate brief dated January 6, 2012, and subsequently approved the transfer of claim, the succeeding intervenor subsequently filed an application for intervention in the instant transfer, claiming that the succeeding intervenor transferred the claim from the Defendant.

C. We examine in light of the legal principles as seen earlier. The succeeding intervenor is not entitled to make any claim against the debtor until he satisfies the requirements for setting up against the assignment of claim, and the distribution procedure in this case also cannot receive dividends by asserting that he received a claim from the defendant. Therefore, if the claims were transferred prior to the filing of a lawsuit of demurrer against distribution and the requisite for setting up against the assignment is met during the lawsuit of demurrer against distribution, the assignee of the claim can assert that he/she has the right to participate in the lawsuit of demurrer against distribution as a successor of the transferor by succeeding to the lawsuit of demurrer against distribution and receive dividends as a successor of the transferor. Therefore, the court below is justified in holding that the application for intervention in this case was lawful, and there is no error by misapprehending the legal principles as to the legality of the application for intervention in succession (Meanwhile, the plaintiff asserted that the application for intervention in succession is unlawful on September 27, 1983 by asserting that the application for intervention in succession is not appropriate, but the above judgment is not appropriate because the assignment of claims and the requirements for counterclaim

3. Regarding ground of appeal No. 3

Where a creditor has seized a claim against a third party debtor for the preservation of a claim, it is reasonable to view that the interruption of extinctive prescription takes effect against a creditor's claim even if the debtor's provisional seizure is not notified of such provisional seizure (see Supreme Court Decision 2011Da108231, Apr. 26, 2012).

The lower court determined that, even if the instant provisional attachment order was not served on the obligor Samchid and only served on the third obligor K non-real estate trust, the extinctive prescription of the Defendant’s claim for construction price against Samchidon was interrupted. In light of the foregoing legal doctrine, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the interruption

4. Regarding ground of appeal No. 4

The lower court, on the grounds indicated in its reasoning, corrected the instant distribution schedule by eliminating the amount of dividends to the Defendant and distributing 430,098,577 won to the succeeding intervenor. Examining the reasoning of the lower judgment in light of the record, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the calculation of the

5. Regarding ground of appeal No. 5

The lower court rejected the Plaintiff’s additional assertion on the amount exceeding KRW 29,960,397,435, out of the total sum of KRW 37,452,647,702 as stated in the “amount of money deposited in Samsan’s Bank Account” as stated in the [Attachment 1] of the lower judgment, and thus, rejected the Plaintiff’s additional assertion on the amount exceeding the above KRW 29,960,397,435, considering the amount of debt repayment to the Defendant. Examining the reasoning of the lower judgment in light of the record, the lower court is justifiable, and contrary to what is alleged in the grounds of appeal,

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)