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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Around August 12, 2016, the Plaintiff’s summary of the Plaintiff’s assertion was awarded a contract with the Defendant for a new construction of accommodation facilities (hereinafter the same as value-added tax; hereinafter the same shall apply) on a parcel other than B, Gun, and one parcel of land, not less than 1.32 billion won. Since then, the Plaintiff continued construction with the said contract amount reduced to KRW 1.21 billion, the construction was conducted with the said contract amount of KRW 81,903,000, and the total construction cost of the said construction was KRW 1,291,903,000 (= the contract amount of KRW 1,210,000,000), and the total construction cost was KRW 81,903,000.
However, the Plaintiff received KRW 1.22 billion from the Defendant, and thus, sought payment of KRW 67,603,00 for the remainder of the construction cost (i.e., KRW 1,291,903,000 - KRW 1,224,300,000, and hereinafter “instant construction cost”).
2. Determination as to the defendant's defense prior to the merits
A. If there exists a seizure and collection order, only the collection creditor may institute a lawsuit for performance against the garnishee. The debtor loses the standing to institute a lawsuit for performance against the seized claim. Matters concerning the standing to be a party are related to the requirements of the lawsuit, and the court shall investigate and determine them ex officio at the time of the closing of arguments in fact-finding proceedings.
(see, e.g., Supreme Court Decision 2009Da85717, Feb. 25, 2010). B.
According to the reasoning of the evidence Nos. 25 through 27 and the purport of the whole pleadings, ① the Plaintiff’s creditor-based advertisements (hereinafter the Plaintiff’s creditor-based company) requested a seizure and collection order as to the claim of KRW 23,547,921 among the instant construction price claims under this Court No. 2018, Feb. 26, 2018, and served on the Defendant; ② the Plaintiff’s creditor-based company requested a seizure and collection order as to the claim of KRW 47,304,681 among the instant construction price claims under this Court No. 2018, Jun. 11, 2018, and the fact that the said decision was served on the Defendant is recognized.
The above facts of recognition are legal principles as seen earlier.