Plaintiff (Attorney Cho Jae-jin, Counsel for the plaintiff-appellant)

Defendant (Law Firm Shink, Attorney Lee Byung-il, Counsel for the defendant-appellant)

January 25, 2017

1. The defendant shall pay to the plaintiff 144,186,360 won with 15% interest per annum from June 17, 2016 to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 144,186,360 won with 5% interest per annum from November 24, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. The plaintiff's claims against the rice cooperatives in Chungcheongnam-Namk National Agricultural Cooperatives

On March 9, 2015, the Plaintiff filed a lawsuit against the Chungcheongnam-Nam National Agricultural Cooperative (hereinafter referred to as “ Chungcheongnam-Nam National Agricultural Cooperative”) for the payment of the construction cost against Jeonju District Court 2015dan10044. On July 21, 2015, the said court rendered a judgment on July 21, 2015, stating that “Woo-Nam National Rice Cooperatives will pay to the Plaintiff the amount of KRW 12,8440,00 and the amount at the rate of KRW 20% per annum from April 9, 2015 to the date of full payment,” and the said judgment became final and conclusive around that time.

B. Real estate relationship between the defendant and Chungcheongnamnam Rice Association

1) With respect to the land and building ( Address 1 omitted), and the land ( Address 2 omitted), which is owned by the Defendant (hereinafter the above real estate, the Defendant set up, August 4, 2009, the right to collateral security, which is the cause of maximum debt amount of 300 million won, with respect to the debtor, Chungcheongnam-nam Rice Cooperatives, the Korea National Agricultural Cooperatives Federation, the National Agricultural Cooperative Federation of Korea, the maximum debt amount of 84 million won, respectively, and the right to collateral security, which is the cause of the debtor, on August 13, 2010.

2) On June 8, 2012, the Chungcheongnam-nam Rice Cooperatives purchased from Nonparty 14 in the name of the Defendant the land ( Address 3 omitted) and the land ( Address 4 omitted) (hereinafter referred to as the “real estate at the time of the delay”) of Chungcheongnam-gun in the name of the Defendant in the amount of KRW 270 million in the price, and completed the registration of ownership transfer on the above land on July 4, 2012 under the name of the Defendant.

3) On November 2, 2012 and November 19, 2014, the Chungcheongnam-nam Rice Cooperatives established a right to collateral security, which causes 96 million won to the debtor, Chungcheongnam-nam Rice Cooperatives, the Nonghyup Bank Co., Ltd., the maximum debt amount, and the maximum debt amount.

4) On May 6, 2015, the Defendant entered into an agreement with the Nonghyup Bank Co., Ltd. on the assumption of obligation and a contract on the change of the right to collateral between the Defendant and the debtor on August 4, 2009 on the assumption of obligation with respect to the secured obligation of the right to collateral and the secured obligation of the right to collateral on the real estate at issue of the Chungcheongnam-Nam Korean Rice Association on August 4, 2009, and on the same day, completed the registration of the change of the right to collateral with respect to the debtor.

(c) A collection order for the seizure and collection of claims;

On November 19, 2015, the Plaintiff was issued a seizure and collection order (hereinafter “instant collection order”) against KRW 144,186,360, out of the claim for return of unjust enrichment equivalent to the purchase price for real estate at the location of the World District Court, Hongsung Branch of Daejeon District Court 2015TTY 3118 (hereinafter “instant claim for return of unjust enrichment”). On November 23, 2015, the Plaintiff was issued a seizure and collection order (hereinafter “instant collection order”). The instant collection order was served on the Defendant on November 23, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 6, Eul evidence Nos. 3, 4, 5, 7, 8, 9, and the purport of the whole pleadings

2. Determination as to the cause of action

According to the above facts, the defendant bears the obligation to return unjust enrichment in an amount equivalent to KRW 270 million against the Chungcheongnamnam Rice Cooperatives. Thus, barring any special circumstance, the defendant is obligated to pay damages for delay calculated at the rate of 15% per annum from June 17, 2016 to the day of complete payment, which is the day following the delivery of a copy of the complaint in this case, to the day of complete payment.

The Plaintiff filed a claim for the delayed payment from November 24, 2015, the following day after the Defendant was served with the collection order of this case. However, the collection order is limited to granting the creditor the right to collect the claim against the garnishee, and it does not order the third debtor to pay the creditor the amount equivalent to the amount of the claim attached to the execution creditor, or setting the payment deadline. Thus, the third debtor is liable for delay as to the amount of the claim attached to the execution creditor, not from the time when the execution court was served with the delivery of the collection order from the execution court, but from the day after receiving the claim from the execution creditor after the issuance of the collection order after the issuance of the collection order (see Supreme Court Decision 2010Da47117, Oct. 25, 2012). Thus, there is no evidence to acknowledge that the Plaintiff filed a claim against the Defendant prior to the filing of the lawsuit of this case, and thus, the Plaintiff’s claim for delay payment for the period until June 16, 2016 is groundless.

3. Judgment on the defendant's assertion

A. The defendant's argument

The Defendant lent KRW 580,758,136 to Chungcheongnamnam Rice Cooperatives in total from June 27, 2008 to March 27, 2015.

In accordance with Articles 370, 341, and 442 of the Civil Act, the Defendant, as a surety, provided a real estate on the deposit basis to the Chungcheongnamnam Rice Association as a collateral, has the right to prior reimbursement of KRW 384 million based on the maximum debt amount. On May 6, 2015, the Defendant discharged the Defendant, who is a surety, from liability for liability equivalent to KRW 313,300,000 against the NHnam Rice Association Co., Ltd. by taking over the collateral obligation of the real estate on deposit basis, the real estate on deposit basis, and the collateral obligation of the real estate on deposit basis. Accordingly, Article 41(1) of the Civil Act on the right to indemnity of the entrusted surety, which is a surety, is analogically applied to the Defendant.

The defendant has the above loans and claims for reimbursement against the Dainam Rice Cooperatives. The defendant shall set off each of the above claims with automatic claims within the equal amount with the claims for return of unjust enrichment of this case by the Dainam Rice Cooperatives.

B. Determination on the defense of set-off with the right to demand reimbursement as an automatic claim

First of all, according to the provisions of Articles 370 and 341 of the Civil Act, the right to indemnity against the debtor by the person who has pledged his/her property to secure another's property takes place when the person who has pledged his/her property to secure another's property has repaid his/her obligation or has lost his/her ownership due to the execution of the mortgage, and Article 442 of the Civil Act on the right to advance indemnity of the trustee guarantor does not apply to the person who has pledged his/her property to the person who has pledged his/her property (see Supreme Court Decision 2009Da19802, 19819, July 23, 2009). In addition, even if the person who has pledged his/her property to secure another's property takes the obligation with immunity, such fact alone does not constitute a case

Therefore, in this case where there is no evidence to prove that the defendant paid the secured obligation to the Nonghyup Bank Co., Ltd., the defendant's assertion on the premise that the defendant has the right to prior indemnity or right to ex post facto indemnity against the Chungcheongnam-Nam National Rice Cooperatives as the surety or the assignee of the debt, is without merit, without examining the remaining points.

C. Determination as to the defense of offsetting the loan claims with automatic credit

1) Comprehensively taking account of the overall purport of the pleadings in the statements in Evidence Nos. 1, 6, 10, and 11 of Eul, the Defendant may recognize the fact that the Defendant loaned KRW 17 million in total to the Dainam Rice Cooperatives, the amount of KRW 30 million on November 25, 2009, KRW 10 million on May 27, 2010, KRW 50 million on June 14, 2012, KRW 10 million on July 5, 2012, and KRW 17 million on December 27, 2013.

B) The Defendant asserts that, in addition to the above KRW 17 million, KRW 5 million on June 27, 2008, KRW 80 million on August 29, 2008, KRW 5 million on October 10, 2008, KRW 250 million on August 10, 2009, KRW 10 million on May 29, 2010, KRW 233,136 on September 16, 201, KRW 50 million on December 29, 2011, KRW 300,000 on December 30, 201, KRW 300,000 on May 29, 201, KRW 5 million on December 30, 201, KRW 300,500 on December 30, 2005, respectively.

However, each of the above evidence and evidence Nos. 5 and the purport of the entire pleadings are as follows. It is difficult for the Defendant to obtain the loan of money in cash without any specific material. Of the above money, the above amount is KRW 5 million on June 27, 2008, KRW 80 million on August 29, 2008, KRW 500,000 on October 10, 2008, KRW 10 million on May 29, 2010, KRW 10 million on rice, and KRW 60,000 on December 29, 2011, KRW 10,000,000,000 on December 30, 2011, KRW 30,000,000 on the loan account under the name of Nonparty 37, 300,000,000 won on the loan, and there is no other evidence to acknowledge that the Defendant was not a representative of the Association.

C) On the other hand, the Dainam Rice Cooperatives paid the Defendant the amount of KRW 10 million on May 27, 2010, KRW 10 million on June 11, 2010, KRW 10 million on December 30, 201, KRW 16,000,000 on February 16, 201, KRW 500,000 on November 14, 201, and KRW 37,000,000 on December 27, 2013, since there is no dispute between the parties to the payment of the Defendant’s loans to the Dainam Rice Cooperatives, the Defendant’s loans amounting to KRW 170,000,000 (= KRW 17,000,000).

The Plaintiff asserted that the Chungcheongnamnam Rice Cooperatives repaid totaling KRW 87,972,120 to the Defendant from December 8, 2008 to March 4, 2015. However, in full view of the purport of the entire pleadings as a result of the reply to submit each financial transaction information to the Nonghyup Bank Co., Ltd. by this court, it is recognized that it paid KRW 87,972,120 to the Defendant several times from December 8, 2008 to March 4, 2015, but it is insufficient to acknowledge the fact that such fact alone exceeds the above recognized scope, and there is no other evidence to prove otherwise. Accordingly, the Plaintiff’s assertion on the above part is not acceptable.

2) In a case where both parties assume an obligation of the same kind, if both parties reach the maturity date for a set-off, each obligor may set off against an equal amount (main sentence of Article 492(1) of the Civil Act). In a set-off, the term “when the maturity for a debt has arrived at the time when the obligor can demand performance,” and it does not mean the time when the obligor is delayed to perform the obligation (see Supreme Court Decision 81Meu10, Dec. 22, 1981). Therefore, it is reasonable to deem that a claim the maturity date for which has not been fixed has arrived at the same time as the set-off is established.

Since this case’s claim for return of unjust enrichment and Defendant’s claim for loans are all claims for which the maturity date is not specified, the above two claims were concluded at the latest on December 27, 2013, and were in offset at the same time upon arrival of the maturity date, and in full view of the purport of the entire pleadings in the statement in subparagraph 1, it is recognized that the Defendant’s proof of the content as of January 19, 2016, expressed by the offset intent, was served on the Chungcheongnam-Nam National Rice Association on January 20, 2016. Accordingly, the claim for return of unjust enrichment in this case’s case’s claim for return of 270 million won, which was retroactively extinguished on the date of the above offset. Accordingly, the Defendant’s defense for offset is justified within the scope of the above recognition, and the remainder is without merit.

3) However, the collection order of this case merely limits the number of seized to KRW 144,186,360, and does not specify any part of the claim to return unjust enrichment of this case as to which part of the claim to return unjust enrichment of this case is seized. Thus, the seizure order of this case extends to the whole claim to return unjust enrichment of this case within the scope of KRW 144,186,360. Therefore, even if the defendant's counterclaim partially reasonable ground for offset exists, the claim to return unjust enrichment of this case remains more than KRW 200,000,000, and it is apparent that this exceeds KRW 144,186,36

4. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Han Han-ga