Whether advance payment can be seen as a bond created for the implementation of the supply contract

In a case where the creditor approved the transfer of the non-party of the non-fixed claim amounting to the non-party, and the creditor decided to first deduct the opposing claim amounting to the execution of the creditor's delivery contract from the payment of the price, it is reasonable to first deduct the creditor's advance payment made after the approval of the assignment

Article 451 of the Civil Act

Seoul Trust Bank Co., Ltd., Counsel for defendant-appellee

Attorney Han-young et al., Counsel for the defendant-appellant

Seoul High Court Decision 77Na1812 delivered on October 26, 1978

The part of the lower judgment against the Defendant regarding the offset shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's appeal is dismissed.

The costs of the appeal by the plaintiff shall be borne by the plaintiff.

1. The summary of the facts established by the lower judgment is as follows:

In other words, after the Defendant Union entered into a contract for the supply of goods with the Public Procurement Service and the National Agricultural Cooperative Federation, the non-party (the non-party) who is the Defendant Union directly supplied the goods to the said Public Procurement Service and the National Federation under the name of the Defendant Union, but the price was deducted from various public charges and fees that the Defendant Union received, and entered into a supply contract with the said non-party. The non-party transferred the undetermined delivery claim to the Defendant Union for the loan security against the Plaintiff, and the Defendant Union transferred it to the Plaintiff for the loan security for the total amount of KRW 458,472,375 to the Plaintiff and the amount of KRW 150,835,880 for the total amount of money transferred to the Defendant Union. The effect of the assignment of the above assignment is limited to the case where the transferor becomes final and conclusive upon the completion of the contract execution and the actual amount of payment is determined. (2) If there is any counter-claim claim or tax and expenses against the Defendant Union against the transferor or transferee, the balance should be paid by deducting from the above payment.

2. As to the Plaintiff’s ground of appeal

According to the records, the plaintiff's assertion that 180,36,60 won was actually supplied by the non-party 1, and the defendant association's 122,00 won was delivered to the non-party 1 and 58,36,60 won was delivered to the non-party 6's association with the same non-party 1's statement of delivery as the non-party 6's non-party 1's 6's 6's 6's 6's 4's 6's 6's 6's 1's 6's 6's 6's 6's 6's 1's 6's 6's 6's 6's 1's 6's 1's 6's 6's 6's 6's 6's 6's 6's 6's 6's 1's 6's 6's 6'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''.

In accordance with the records, we affirm that the above delivery performance certificate (No. 6-4) was prepared falsely for the same reasons as the original time, and it cannot be said that there were errors such as the theory of litigation in the evidence preparation or the trial process which was completed in the process of fact-finding.

In addition, the defendant's approval of the transfer of the non-determined price of goods between the plaintiff and the non-party on the condition that the non-party, who is the transferor, becomes liable for the payment of the goods to be supplied by the defendant, and the actual amount of payment is determined. Thus, even if the defendant sent the plaintiff a reply that is expected to pay the payment of the false supply records, it cannot be viewed as a so-called "non-assumed declaration of intention" because it merely marks false facts. Therefore, the judgment of the court below which rejected the plaintiff's assertion is just and there is no misapprehension of the legal principles as the theory of lawsuit, and it is not justified.

3. As to the Defendant’s ground of appeal

The court below held as follows: (1) the defendant's defense to offset the above non-party's payment amount from January 4, 1975 to February 19 of the same year; (2) 58,285,464 (2) the aggregate amount of the advance payment paid to the above non-party from January 4, 1975 to February 19 of the same year, 6,470,439, and (3) the government-paid raw materials are exempted from 10% of the goods tax; (3) since the non-party's non-party's payment failure to pay the non-party's goods tax amounting to 5,025,047, 69,780,950 won, the non-party's claim against the non-party's transfer of the above goods amount is set off against the non-party's payment claim amount, or if there is any tax, public tax, and public tax and public expenses on the delivery performance portion, the non-party's claim against the non-party's transfer order is justified.

According to the records, the transfer of the non-determinedable claim is limited to the transfer of the non-fixed claim against the non-party for the guarantee of the plaintiff's credit, and there is no dispute between the plaintiff and the defendant. The terms and conditions of the transfer approval of the defendant are interpreted to be deducted from the payment of the non-party's opposite claim arising from the execution of the supply contract by the non-party. Thus, even if the defendant's prior payment that the non-party paid after the approval of the transfer of the above credit is inappropriate from the fact that it is not impossible for the non-party to perform the supply contract, it is reasonable to deduct the non-party's preferential payment if it is unnecessary for the non-party to perform the supply contract, and it is reasonable to view that the compensation for delay or the preferential payment of the goods is caused by the performance of the above supply contract (the original payment of the compensation for delay is referred to as one copy of the set-off of the compensation for delay) and therefore, it is not reasonable to reverse this part of the judgment of the court below, which did not err in the misapprehension of the grounds for appeal.

For the same reasons, the plaintiff's appeal is dismissed, and the costs of the appeal are assessed against the plaintiff who has lost, and the part of the judgment below against the defendant regarding the offset is reversed and remanded. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-chul (Presiding Justice)