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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The parties' assertion
A. The Plaintiff’s assertion, as the creditor of C Co., Ltd. (hereinafter “C”), was issued a claim attachment and collection order against KRW 44,672,515 out of the construction cost of new construction of the instant house (hereinafter “instant house”) owned by C as the creditor of C (hereinafter “C”).
Therefore, according to the above collection order, the Defendant is obligated to pay the Plaintiff KRW 44,672,515, which is a part of the construction price.
B. The Defendant asserted that the instant housing construction contract was concluded between E and E, but E did not proceed with only a part of the said construction work and the remainder of the construction work, and concluded a contract with C to terminate the said contract and to contract the remainder of construction work cost of KRW 150 million between C, and paid KRW 158,100,000 to C, but C could not accept the Plaintiff’s claim as it failed to complete the instant housing construction work.
2. In a lawsuit for the collection of judgment, the existence of a claim for the collection of judgment is a requisite fact and the burden of proof is borne by the plaintiff (Supreme Court Decision 2005Da47175 Decided January 11, 2007). If there is a special agreement between the parties on the time of payment of remuneration in the contract, the said special agreement shall prevail, and if there is no special agreement or custom, it shall follow the custom, and if there is no special agreement or custom, it shall be paid at the same time as the delivery of the completed object, or
(Supreme Court Decision 2014Da72210 Decided October 27, 2016). With respect to the instant case, the Plaintiff filed a lawsuit claiming user fee (2018Da58668) against C and F, and was sentenced on October 2, 2018 to “C and F jointly pay the Plaintiff KRW 42,506,434 and its delay damages,” and thereafter, on November 28, 2018, the Plaintiff was the obligee “Plaintiff”, “C”, and “Defendant” and “Defendant” and “Defendant” under the said judgment on November 28, 2018.