2015Da62876 Collection Money

A

B

Gwangju District Court Decision 2014Na13712 Decided September 11, 2015

March 10, 2016

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. After finding the facts as indicated in its reasoning, the lower court rejected the Plaintiff’s claim for collection against the Defendant on the ground that, on or before April 7, 2014, the claim for the construction payment against the Defendant under the instant construction contract was entirely extinguished before the provisional attachment order of the instant claim was delivered to the Defendant, the claim amounting to KRW 77,045,00 was transferred to KRW 77,000,000 from the Defendant to a third party while the Plaintiff had already been paid KRW 574,000,000 from the Defendant.

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. According to Article 450 of the Civil Act, a transfer of nominative claim shall not be effective against any third party other than the obligor, unless it is based on a certificate with a fixed date, without notifying the obligor of the transfer or consent of the obligor, and this notification and consent shall not be effective against the obligor. In addition, even in a case where the assignment of claim with a fixed date is notified, the highest order between the assignee of the claim and the person who executed a provisional seizure or seizure order with respect to the same claim shall be determined by notification of the transfer of claim with a fixed date and notification of provisional seizure or seizure order after the arrival to the third obligor (see, e.g., Supreme Court en banc Decision 93Da24

B. According to the reasoning of the lower judgment and the record, the Defendant, who operates C Hospital, entered into the instant construction contract between Aart Construction and C Hospital on June 30, 2013, and agreed on March 5, 2014 to change the construction amount to KRW 650 million. ② The Plaintiff was notified of the instant provisional seizure order against Aart Construction as the claim amount of KRW 32,615,000 against the Defendant on April 3, 2014, and the instant provisional seizure order was issued to the Defendant on April 7, 2014, which was sent to the Defendant on June 30, 201, and the Plaintiff was given notification of the instant provisional seizure order of KRW 40,00 to the Defendant on June 30, 201, and the subsequent notification of the instant provisional seizure order of KRW 66,612,320,300,000,000 to KRW 40,000,000,000.

Nevertheless, the lower court rejected the Plaintiff’s claim by determining that the claim for construction price of the instant construction contract was extinguished by transfer, etc. prior to the delivery of the provisional attachment order of this case, without examining whether to notify the Defendant of the assignment of claims with the fixed date of assignment of claims and the time of arrival of the notification, as indicated in its reasoning, and thus, rejected the Plaintiff’s claim. In so determining, the lower court erred by misapprehending the legal doctrine on the heat between the assignee of claims and the executor of provisional attachment or seizure order, thereby adversely affecting the conclusion of the judgment

3. Therefore, the lower judgment is reversed, and 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 Kim Jae-young

Note Justice Lee In-bok

Justices Lee B-soo.