[1] Method of interpreting the language and text stated in the “Indication of a claim to be attached” in the seizure order, and whether a claim to which a third party obligor may have a question as to whether it was included in the seizure order based on an ordinary average person with ordinary care can be deemed to have been included in the seizure order (negative in principle)

[2] In a case where Gap corporation and Eul corporation leased KRW 200 million to Byung association by a special contract while concluding a construction contract for the land zone rearrangement project with Byung association, and Jung company received a seizure and collection order of Gap's claim for the refund of the construction deposit against Byung association, the case holding that the above collection order does not extend to Byung association's claim for the refund of the loan granted to Byung association by considering all the circumstances

[1] In the seizure of claims, a third-party obligor is obligated under an order of seizure as a legal dispute between others by other parties. Such third-party obligor needs to be protected so that it does not have an excessive burden in understanding the claims already seized or its scope. Therefore, the phrase “mark of claims to be seized” should be objectively strictly interpreted according to its language and text itself. If the meaning of the language and text is unclear, it is reasonable to impose upon the requesting obligee any disadvantage arising therefrom. Therefore, barring special circumstances, the third-party obligor’s claims having doubts as to whether they are included in the context of understanding of the language and text based on the average person with ordinary care should not be deemed to be included in the seizure. Such attitude can be explained from the following perspective. In other words, it is difficult for a person who intends to obtain legal interest by transfer or provisional attachment of claims against the third-party obligor, or establishment of other rights, etc., to clarify that the execution obligee and the third-party obligor are more interested in the execution of the claims, and thus, it is not desirable to establish an obligee’s interest in the execution procedure, including legal and private interests.

[2] The case holding that in case where Gap corporation and Eul corporation leased KRW 200 million to Byung corporation Byung, pursuant to a special contract, upon entering into a construction contract with Byung corporation and Eul corporation on the adjustment of land section with Byung corporation, and it received a seizure and collection order on Gap corporation Byung corporation Byung's claim for the refund of construction deposit and loan refund, the court held that the above collection order does not extend to Eul corporation Byung corporation Byung's claim for the refund of loan, on the grounds that it cannot be easily seen as identical to the loan refund claim under the above special agreement, in full view of all the circumstances, including the fact that Eul corporation's claim for the return of construction deposit and loan refund are merely other claims, such as the name, legal character, and substance, as well as the fact that Eul corporation's claim for the return of loan and loan refund are merely other claims.

[1] Articles 223 and 225 of the Civil Execution Act / [2] Articles 223 and 225 of the Civil Execution Act

[1] Supreme Court Decision 2010Da96911 Decided February 24, 2011 (Gong2011Sang, 644), Supreme Court Decision 2010Da47117 Decided October 25, 2012 (Gong2012Ha, 1898)

Plaintiff

Masansan Hot Spring Site Readjustment Association (Law Firm Law Firm, Attorney Lee Dong-ho, Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2012Na2124 decided December 26, 2012

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. The lower court acknowledged the following facts first of all. The Plaintiff received a claim attachment and collection order (hereinafter “instant collection order”) against KRW 1,294,853,655 among the claim for return of the construction deposit in the land readjustment project from the Plaintiff’s association against the Defendant Union of the said Green Community Co., Ltd. (hereinafter “NB”), and the said order was served on the Defendant Union. Meanwhile, on August 2005, the Defendant Association entered into a construction contract for the land rearrangement of the Yongsan-gu District Hot Spring Construction Co., Ltd. (hereinafter “Housing Construction”) (hereinafter “instant construction contract”). From the instant construction contract’s special agreement, the Defendant Association agreed to lend KRW 200 million to the Defendant Union as operating expenses. Accordingly, the public and Green Forest Construction loaned KRW 20 million to the Defendant Union.

Then, based on the foregoing factual basis, the lower court acknowledged that, at the time of delivering the instant collection order based on the foregoing factual basis, Green Community Co., Ltd., the divided creditor, together with the Defendant Mutual Fund at the time of delivering the instant collection order, had the claim for the return of loan worth KRW 100 million (hereinafter “the instant claim for the return of loan”). Furthermore, even if the lower court indicated in the instant collection order the claim, which is the object of the seizure and collection order, as “the claim for the return of the construction deposit for the land readjustment project in order to the Defendant Mutual Fund,” it cannot be deemed that the seized claim has reached the degree of undermining the perception that it is identical with the instant claim for the return of loan, and thus, the identity of the instant claim for the return of the construction deposit and the instant claim for the return of loan can be recognized, and therefore, it partly accepted the Plaintiff’s claim

① In the instant construction contract concerning the construction of fforest, the public interest in green hot spring, and the rearrangement of land partition between the Defendant and the construction of the instant land zone, which was concluded between the instant public service and the instant public service, to lend KRW 200 million to the Defendant Union. Since it is clearly stated that the claim, which is the object of the instant collection order, is related to the land readjustment project of Dobong Hot Spring Tourist Resort and its cause is specified in detail.

② It does not necessarily limit the deposit for construction works to the money paid in advance to secure the implementation of a forest construction contract and a neighboring public construction contract, and there is room for understanding that the forest construction project and its neighboring public project have been paid to the defendant association with regard to the instant construction works.

③ Under paragraph (6) of the special agreement for the instant construction contract, only the head of a forest construction project and a neighboring public project therein may submit a performance bond to the Defendant Cooperative, and the said special agreement does not separately provide for the payment of the amount of money to guarantee

④ Claims against the Defendant Union regarding the instant construction project are due to the instant special agreement under paragraph (5) of the instant construction contract.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. In the seizure of claims, a third party obligor is assigned to a legal dispute between others, and bears the obligations under an order of seizure. As such, such a third party obligor need not have an excessive burden in understanding the claims seized or its scope. Therefore, the language and text stated in the “mark of claims to be seized” should be objectively strictly interpreted in accordance with the language and text itself. If the meaning of the language and text is unclear, it is reasonable to impose on the requesting obligee any disadvantage arising therefrom. Therefore, barring any special circumstance, a claim that the third party obligor may have an doubt as to whether to include the text in understanding of the language and text based on an average person with ordinary care should not be deemed to have been included in the seizure (see Supreme Court Decision 2010Da47117, Oct. 25, 2012, etc.).

This attitude can be explained from the following perspective. In other words, it is frequent that a person who intends to have legal interest in a claim against a third debtor by taking over, seizing, provisionally seizing, or establishing other rights, etc. of an executory debtor and a third debtor seek not only the existence of the claim but also information necessary for the third debtor to make a decision on property which is not established or entered into with specific contents as well as the existence of the claim. Therefore, it is desirable to make the third debtor clearly aware of the effect of the seizure, etc. conducted for the purpose of the execution debtor's obligation against the third debtor. It is difficult to say that the third debtor can not have an ambiguous awareness of the effect of the seizure, etc. conducted for the purpose of the execution creditor's obligation, which is different from the execution interest of the execution creditor's individual, properly comply with the benefit generally pursued by our law such as smooth distribution or operation of goods (see Supreme Court Decision 2010Da6911691, Feb. 24, 2011).

B. The record reveals the following circumstances.

① “Deposit for construction work” stated in the “Indication of the claim to be attached” of the instant collection order as the claim against an affiliated public Defendant association is money owed by the contractor to the contractor until the completion of construction work on the ground that the contractor intends to guarantee the obligation to compensate for damages due to nonperformance of the contract for construction work. The loan is money that the lender arbitrarily consumeds the loan to the borrower and grants to the borrower to return the amount equivalent to the same amount. As can be seen, not only the name itself but also the legal nature or content of the claim to return the construction deposit and the loan are distinguishable.

② A contractor’s claim for the return of construction deposit against a contractor can be deemed as a part of the terms and conditions of a contract, which is generally established on the premise of a contract for construction works. On the contrary, a contractor’s claim for the return of a loan against a contractor cannot be deemed as being naturally accompanied by or established as a part of a contract for construction works among them, and even if it is established in relation to a contract for construction works, the contract for construction works is merely an opportunity for the establishment of a claim for the return of a loan. Therefore, even if a contractor’s claim for the return of a construction deposit against a contractor and a claim for the return of a loan are related to the same construction contract for construction works, the cause of its establishment cannot be deemed as identical, and even if the cause of its establishment can be deemed as the same, it cannot be readily concluded that

③ On the other hand, it cannot be readily concluded that from the standpoint of the third debtor association, the above construction deposit return claim stated as the bond to be attached under the instant collection order is naturally referred to as 1,294,853,655 won among the construction deposit return claim, and that the construction of green public and green forest leased to the Defendant association based on a special contract for the instant construction contract is considerably different from the amount of KRW 200 million. Thus, it cannot be readily concluded that the third debtor association, as a matter of course, understood that the above construction deposit return claim stated as the bond to be attached under the instant collection order, naturally referred to as referring to or including the instant loan return claim.

④ After the collection order of this case was delivered to the Defendant Union, it is reasonable to view that Nonparty 1, the president of the Defendant Union was fully or partially responsible for the agreement on the public property, etc., as well as the Defendant Union, with the purport that the Defendant Union would have repaid the loan granted from Green Public and Ho Forest Construction to the Defendant Union with the view that, in relation to the construction contract of this case, the deposit amount of KRW 450,500,000,000, including loan 200,000,000,000 won was obtained through a judgment, such as fraud, etc., which was obtained from Nonparty 2, who was the representative director of Green Public Corporation and the chairman of Ho Forest Construction, and that the above non-party 2 did not have any direct relation with the refund of loan claim of the Defendant Union as stated in the instant collection order of this case, and that the receipt (record 74,000,000,000 won) written out with the proof, it could not have any direct relation with the instant collection order of this case.

C. In light of such circumstances, it is reasonable to view that, in understanding the phrase “the claim for the return of construction deposits for a land readjustment project,” based on the average person with ordinary care, the Defendant Union, as the third debtor, stated in the “Indication of Claim to be Attached” in the instant collection order, and it cannot be easily perceived as being the same as the instant claim for the return of loan to the Defendant Union of Green Public Property following the receipt of loans from the Defendant Union by the special agreement of the instant construction contract entered into between Green Public Property and Housing Construction for the said land readjustment project, which was promoted by the Defendant Union. Rather, it is reasonable to view that the instant claim for the return of loan cannot be deemed as subject to the instant collection order, and therefore, it does not affect the validity of the instant collection order.

D. Ultimately, the part of the judgment below against the defendant among the judgment below which determined otherwise is erroneous in the misapprehension of legal principles as to the scope of claims subject to seizure which affect the effect of the seizure order. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)