Seoul Southern District Court 2013Na51068 ( October 23, 2014)

An assignment order issued under the concurrent status of seizure shall be null and void.

Each assignment order is null and void as it is obvious that the seized claim does not reach the amount of the seized claim at the time of the assignment order, when the seizure competes with each other.

2012 grouped 67263 of the Demurrer

KimA

Korea

March 22, 2013

April 19, 2013

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. With respect to the distribution procedure case of Seoul Southern District Court 2012taro 597, the above court shall rectify the dividend amount of the defendant to 000 won on September 27, 2012, and the dividend amount of the plaintiff to 000 won on September 27, 2012.

2. On November 22, 2012, the Seoul Southern District Court 2012 Taz. 1631, with respect to the distribution procedure case, the above court held the above court as to the distribution procedure case.

Of the dividend table prepared, 000 won for the defendant shall be 00 won, and 00 won for the plaintiff shall be corrected to 000 won, respectively.

1. Basic facts

A. BB Co., Ltd. (hereinafter referred to as “BB”) concluded a contract with CCC (hereinafter referred to as “CCC”) and received fees, etc. from CCC (hereinafter referred to as “instant fee claim”).

B. BB filed a lawsuit against CCC on September 5, 2008 seeking confirmation of the existence of the joint and several surety obligation and demanding the new bank to notify the invalidation of the pledge of the deposit claim on April 14, 2011, which was rendered a favorable judgment in the first instance court (Seoul Central District Court 20107), 77809. BB changed the BB to the appellate court (Seoul High Court 201Na3285) the demand to demand the performance of the said pledge effect to claim restitution of unjust enrichment of KRW 000 (hereinafter referred to as the “instant claim”).

C. On October 24, 201, at the Seoul Southern District Court, the Plaintiff received five total claims against BB’s claim against BB’s claim against the instant judgment claim and fee claim (201TTT 26315 through 2011TT 26319). The instant claim attachment and assignment order was determined by giving priority to the instant claim to be determined in the lawsuit, and the instant claim attachment and assignment order was determined by giving priority to the instant claim to be determined in the lawsuit, and the amount up to the claim amount. Each of the above claims attachment and assignment order reached the CCC on October 27, 201.

D. On March 36, 2012, CCC deposited KRW 000 in accordance with Article 248(1) of the Civil Execution Act (Seoul Southern District Court No. 11113, 2012), and reported the reasons for the deposit to the above court on the ground that BB had competition with CCC with DD and 27 creditors regarding the instant fee claim from CCC.

E. On August 10, 2012, CCC deposited KRW 000 in accordance with Article 248(1) of the Civil Execution Act (Seoul Southern District Court No. 3013, 2012), and reported the reasons for the deposit to the above court on the ground that BB had competition with DD and 33 creditors with respect to the instant fee claim to be paid by CCC.

F. The Seoul Southern District Court prepared a distribution schedule under the jurisdiction of the seizure authority, which requested the delivery of all the amount of KRW 72,582,296 to be actually distributed on September 27, 2012, and the amount of KRW 72,582,296 to be distributed on November 22, 2012, and the distribution procedure in the case of distribution procedure for the 201stmala1631, in which the Defendant, the seizure authority, who requested the delivery of all the amount of KRW 000 to be actually distributed on November 22, 2012, prepared a distribution schedule under the jurisdiction of the seizure authority (Guro tax office). The Plaintiff raised an objection against the amount of dividends to the Defendant by attending each of the distribution dates, and filed the instant lawsuit within seven days.

[Reasons for Recognition] The non-speed facts, Gap 3, 7, 8, 21 to 23, 31 to 34, and 40, and Eul 1, and the purport of the whole pleadings

2. Summary of the assertion

The Plaintiff filed a correction of each distribution schedule, such as the entries in the claim, by asserting that the assignment order as above was not in the condition of attachment agreement at the time of arrival of the third debtor, and that the assignment order was valid, and that the Defendant thereafter seized claims around November 10, 201, and that the Plaintiff should have priority over the Defendant, and that the Plaintiff should have priority over the Defendant. Accordingly, the Defendant asserts that the attachment order of the Plaintiff is invalid.

3. Determination

(a) Facts of recognition;

1) Prior to October 27, 201, the Plaintiff’s respective assignment order was served on and before CCC, a garnishee, and there were seven claims, provisional seizure, and seizure of the instant fee claim against BB with respect to BB’s instant fee claim against BCC. The foregoing seven cases are as follows. The amount of the claim for the seized enforcement claim is KRW 000 in total (excluding ① which was transferred to this attachment).

1. The claimed amount of 000 credit for those credit served on the garnishee on February 10, 2011 (Ulsan District Court 201Kadan246) and provisional attachment (Ulsan District Court 201Kadan246).

(2) The amount of claims for the family of caution delivered to the garnishee on May 27, 2011, which is 000, provisional seizure of the claims (e.g., Gwangju District Court Decision 201Da1344), and

(3) The amount of the claim of the E, which was served on the garnishee on June 9, 2011, is 000, the claims and collection orders (Seoul Southern District Court 201T District Court 201TF 15401), and

(4) The claim amount of the lowest FF, served on the garnishee on June 10, 2011, is 000, the claim amount of the provisional attachment (which means the 2011 Cut3833, 101, 201, 201) and

5. The claims and collection orders (Ulsan District Court 201TTTT 201TT 8974; 1. The provisional seizure is transferred to the main seizure, and the claims newly 00 won are seized) to the provisional seizure, which is 000 won, delivered to the garnishee on June 17, 201.

6. Claim amount of the selected party KimGG, which was served on the third debtor on June 23, 2011, is 000, provisional attachment (which was 201 Cut4564, 201, hereinafter referred to as the “Culnam site”), and

(7) Claim attachment and collection order of Kim H's claim amount, which was served on the garnishee on August 22, 2011 (Seoul Southern District Court Decision 2011 Taz21854, Seoul Southern District Court Decision 2011Doz.21854)

2) Prior to this deposit under Section 1(c) and (d), CCC deposited KRW 000 on July 26, 201 (Seoul Southern District Court No. 3104, 201) on the ground of the attachment concurrence between the above 1 to 6.26, 201, and from the distribution procedure case (Seoul Southern District Court 201ta 1590) on the distribution procedure (the same court) on September 27, 201, the amount of KRW 000 was distributed, and the amount of KRW 000 to be actually distributed on August 9, 2012 was additionally distributed.

3) CCC deposited KRW 000 on October 17, 201 (Seoul Southern District Court No. 4306, 201) on the grounds of the foregoing (i.e., seizure competition) (i., the Seoul Southern District Court 201), and dividends were distributed on December 22, 2011 from the distribution procedure case (i.e., the same court 201TW 2314) but Kim HH (the first collection creditor) did not receive dividends of KRW 000 due to the shortage of dividends.

4) On September 27, 2012, the distribution schedule was prepared in Seoul Southern District Court 2012Taero 597 in the distribution procedure under the foregoing paragraph (f). Kim HH applied for the cancellation of attachment and waiver of collection rights to the above court on September 26, 201, when 11 months from October 27, 201, the delivery of the Plaintiff’s assignment order.

5) On October 27, 201, the date of the delivery of the Plaintiff’s assignment order, CCC deposited most of the debt amount, as seen earlier, and did not have the instant fee obligation against BB. The instant fee obligation occurred between October 201 and March 2012, and CCC conducted a set-off, such as set-off between October 20 and December 2011 and January 201, respectively.

6) On June 21, 2012, the appellate court (Seoul High Court 201Na33285) revoked the judgment of the first instance court and declared the judgment against BB that dismissed the claim for the instant judgment claim.

7) Around November 10, 2011, the Defendant seized the instant fee claim. The Defendant’s seizure claim against BB is a tax claim of KRW 000 in total of value-added tax and business income tax, and the statutory scheduled date is prior to July 25, 201.

[Grounds for Recognition] The descriptions of Gap and 24 through 30, and the fact-finding with respect to the CCC in this Court, and the purport of the whole pleadings

(b) Competition of seizure;

1) According to the above facts, while the amount of claims seized on the instant fee claims is 000 won in total, and the amount of the enforcement deposit deposited by CCC is 000 won and the total amount of the seized claim is not deposited, each assignment order issued by the Plaintiff, which is the sum of the seized amount, to the third obligor CCC on October 27, 201, was served on the third obligor CCC on October 27, 201, and it is apparent that the amount of the instant fee claim, which is the seized claim on October 27, 201, falls short of the above amount of the seized claim including the Plaintiff, and each assignment order issued by the Plaintiff on October 27, 201, is null and void.

2) On or around July 26, 2011 and October 17, 2011, the Plaintiff asserted that the execution deposit and the seizure of Kim HH’s attachment on or around September 26, 2012, the Plaintiff’s front line (i) through (vii) before and after the release of attachment, do not conflict with the seizure since the seizure becomes null and void. As seen earlier, the execution deposit amount as of October 27, 201 as of October 27, 201, when the assignment order was served to a third party was served. As such, the seizure of Kim H was effective, and each of the above assignment orders issued in the condition of seizure, and the Plaintiff’s assignment orders, which were null and void due to the issuance in the condition of seizure, cannot be said to have gone beyond the concurrent state due to the cancellation of the execution of the above preceding attachment of Kim H’s claim (see, e.g., Supreme Court Decision 2007Da73826, Jan. 17, 2008).

3) The plaintiff's assignment order cannot be determined based on the amount of claims finally established at the time when the assignment order was served on the third party debtor, and if it is impossible to identify the amount of claims because the assignment order of the plaintiff was not determined on the basis of the amount of claims under the contract at the time when the assignment order was served on the third party debtor, it is reasonable to view that the above claim would occur in the future by the contract as the amount of claims subject to attachment under the above legal principles (see, e.g., Supreme Court Decisions 200Da9890, May 13, 2010), and that the above claim would not be included in the amount of claims subject to attachment under the above contract after calculating the amount of claims under the above contract, and that the above claim would not be included in the amount of claims subject to attachment under the premise that the above assignment order of the plaintiff would be more effective than the amount of claims subject to attachment under the above contract, and that the above claim would not be included in the amount of claims subject to attachment under the premise that the above assignment order of the plaintiff would be included in the amount of claims subject to attachment.

B) We examine whether each assignment order issued by the Plaintiff to a third party obligor can be seen as including the fees of this case that occurred after the delivery of the order to attach. The fees of this case shall be deemed to fall under continuous revenue claim (which shall be deemed to have occurred from approximately KRW 000 to KRW 000 per month). If a part of the claims is issued subsequent to the attachment, it shall be deemed that each attachment order has a condition subsequent to the attachment, and it shall affect the whole of the claims, and accordingly, it shall not be deemed that the claims subject to the attachment are continuously imported claims, and therefore, if the sum of claims subject to the attachment has been set at different dates, it shall be deemed that the amount of each of the above claims was 00 won continuously incurred after the attachment, and that the amount of the claims of this case would have no effect until the attachment took effect until the attachment took effect (see, e.g., Supreme Court Decision 200Da107101, Dec. 17, 2002).

C) Therefore, the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.