Gwangju District Court Gwangju District Court Decision 2012Gau10707 ( October 11, 2013)

No defense may be asserted against the plaintiff who is the right holder due to extinguishment of debt following the agreement on payment.

The agreement on payment in kind alone cannot be deemed to have extinguished the Defendant’s obligation to pay the remainder to the non-party delinquent company, and thus cannot be asserted against the Plaintiff

Civil Code § 465 (Performance by Proxy)

2013Na10535 Collection Money

Korea

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Gwangju District Court Decision 2012Gahap10707 Decided April 11, 2013

October 2, 2013

October 23, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant shall pay to the Plaintiff 00% interest per annum from October 23, 2012 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is that the reasoning for this Court’s new argument is as stated in the judgment of the first instance except for adding the following judgments to the corresponding part of the reasoning for the new argument in the Defendant’s trial. Therefore, this Court’s reasoning is cited in accordance with the main sentence of

2. Judgment on the defendant's new argument

On February 10, 2012, prior to the seizure of the Plaintiff’s claim for the remainder of the instant real estate, the Defendant: (a) concluded a modified agreement with the foregoing company on February 10, 2012, under which the Plaintiff increased the down payment and intermediate payment out of the sale price as an OOO; (b) reduced the remainder into the OOO won and paid the remainder by July 5, 2012; and (c) extended the remainder by December 30, 2012 according to the insolvent financial institution; and (d) where it is difficult to pay the remainder due to rent or unsold in lots, the Defendant entered into a separate agreement to the effect that the share of the building out of the said real estate is divided into 1/2 of the remainder payment in installments; and (c) concluded a separate agreement under the said modified agreement on July 5, 2012, and thus, (c) can oppose the Plaintiff.

According to each description of evidence Nos. 5 and 6-1, 2, and 3, the Defendant and the company mentioned above may recognize the fact that the modified contract and the balance payment statement as alleged by the Defendant were made. However, any balance determined upon agreement on July 5, 2012 is close to the amount arising from the initial performance of the contract, rather than the modified contract, and the modified contract provides that the remainder payment date may be extended until December 30, 2012. In addition, the remainder payment method agreed on July 5, 2012 cannot be deemed as the same as that of the modified contract, and there is no other evidence to acknowledge it otherwise. Furthermore, in order to extinguish the validity of the payment in kind, the obligor’s actual payment in lieu of the original performance should be the case where the payment in kind was made on behalf of the Defendant, and if the payment in kind was made on July 5, 2012, it should not be viewed that there was a change in the ownership of another party’s real property and there is no evidence to acknowledge it.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just and the defendant's appeal is without merit, and it is dismissed. It is so decided as per Disposition.