Korea

Defendant 1 and one other (Attorney Kim Tae-il, Counsel for the defendant-appellant)

January 31, 2012

1. The Seoul Southern District Court confirmed that the right to claim the payment of deposit money of KRW 357,068,360 out of KRW 357,315,009 deposited by gold No. 1488 in 2007 is against Nonparty 2.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Basic facts

A. On July 30, 1999, Defendant 1 (Nonindicted Party 1) filed a lawsuit for the purchase price claim against Nonparty 3 and two other parties, with the Seoul Southern District Court 99Gahap12810, and around January 18, 2001, Defendant 1 (Nonindicted Party 1) rendered a judgment in favor of the above court to the effect that “Nonindicted Party 3 and two other parties jointly and severally pay to Defendant 1 KRW 2 billion,185,045, and damages for delay after September 7, 199,” and the above judgment became final and conclusive on April 9, 202.

B. Around March 24, 1999, for the enforcement and preservation of the above claim, Defendant 1 provisionally seized the above building around the 26th day of the same month by taking the claim amount as to the 4th floor building owned by Nonparty 3 in Seoul ( Address omitted) as KRW 2.5 billion. Around August 24, 2006, Defendant 1 started the compulsory auction procedure around August 24, 2006, Seoul Southern District Court Decision 2006ta27465, and Defendant 1 was to receive KRW 357,068,360 from the above auction procedure (hereinafter “instant claim for dividend payment”).

C. On March 8, 2007, the above auction court deposited KRW 357,315,009 as Defendant 1 as the principal deposit and deposited KRW 357,315,009 as Seoul Southern District Court Decision 2007, Seoul Southern District Court 2007, 3941, 4043 (combined), 13948 (Consolidated), and 18561 (Joint) on the ground that the creditor and Defendant 2 (Defendant 1) filed a lawsuit of demurrer against each of the parties to the distribution [the Seoul Southern District Court 2007, 3941, 4043 (Joint), 13948 (Joint), and 18561 (Joint)].

D. Around July 21, 2007, Defendant 1 transferred the above KRW 357,068,360, which was distributed to Defendant 1 (hereinafter “transfer of claims of this case”) among the claims for payment of the instant deposit money to Nonparty 2, and notified the Plaintiff of the said transfer of claims on or around July 27 of the same month.

E. Meanwhile, around October 9, 2007, Defendant 2 filed an application for provisional attachment of the instant deposit payment claim against Defendant 1 as the debtor, the Plaintiff (deposited officials of Seoul Southern District Court) as the third debtor, and received a provisional attachment order from the above court on November 8, 2007, which was issued a provisional attachment order regarding the above deposit payment claim from the above court on the ground that the said order was served on the Plaintiff on November 14 of the same year, and around October 15 of the same year, the lawsuit against Defendant 1 claiming the payment of penalty amounting to KRW 200 million against the above court on September 19, 2008 was filed with the same court as the above court on October 15 of the same year, 2007, and was transferred to the court on September 19, 2008 as the provisional attachment order on the same year and received the above provisional attachment order from the above court on September 15, 2008.

F. On October 4, 2011, the Plaintiff failed to pay KRW 55,042,860, which was notified by Nonparty 2 as of August 31, 201, to compensate for the said transfer income tax claim, and thus, seized the instant claim for reimbursement of deposit (hereinafter “instant seizure”) to compensate for the said transfer income tax claim, and notified the public officials of the Seoul Southern Southern District Court’s deposit of the said seizure around the fifth day of the same month.

G. On December 13, 2011, Defendant 2 transferred to Nonparty 2 the right to claim the payment of the instant deposit against Defendant 1 for the purpose of evading compulsory execution based on the penalty liability owed by Defendant 1 against Defendant 2. As such, Defendant 2, who asserted that the assignment of the instant claim ought to be revoked as a fraudulent act, was rendered a favorable judgment of the Seoul Southern District Court 201Gahap18698, and the said judgment became final and conclusive around that time (hereinafter “instant lawsuit”).

[Ground of recognition] The fact that there is no dispute, Gap's 3, 5 through 16, Eul's 5, 7 through 9, and the purport of the whole pleadings

2. Determination as to the claim against Defendant 1

(a) Description of the claim;

Defendant 1 transferred KRW 357,068,360, which was distributed to himself, among the claim for payment of the instant deposit, to Nonparty 2, and the Plaintiff seized the claim for payment of the said deposit transferred by Nonparty 2 in order to preserve the transfer income tax claim against Nonparty 2. Thus, Defendant 1 seeks to confirm that the claim for payment of the instant deposit was made against Nonparty 2, the depositee, in subrogation of Nonparty 2.

(b) Grounds for recognition;

Judgment by public notice: Article 208(3)3 of the Civil Procedure Act

3. Determination as to the claim against Defendant 2

A. The parties' assertion

(1) Plaintiff

Even if the assignment of the claim of this case was made as a false conspiracy between Defendant 1 and Nonparty 2, one’s own type of sale, for the purpose of evading compulsory execution, the Plaintiff is a bona fide third person under Article 108(2) of the Civil Act, and the Defendant cannot assert to the Plaintiff that the assignment of the claim of this case is null and void as a false conspiracy. Therefore, the seizure of the Plaintiff’s right to claim payment of the deposit of this case against Nonparty 2 is valid, and Defendant 1’s notification of the assignment of claim of this case ( July 27, 2007) is deemed null and void as the object of Defendant 2’s provisional attachment rather than Defendant 2’s notification of provisional attachment ( November 14, 2007), so the Plaintiff’s right to claim payment of the deposit of this case on behalf of Nonparty 2 in order to preserve the transfer income tax claim against Nonparty 2.

(2) Defendant 2

① The assignment of the instant claim is a fraudulent act against Defendant 2, who is the obligee of Defendant 1, and Defendant 2 was rendered a final judgment in favor of the lower court in the instant lawsuit seeking revocation of the fraudulent act filed against Nonparty 2. As such, the said assignment of claim was null and void. Therefore, the right to claim payment of the instant deposit is still against Defendant 1.

② The assignment of the instant claim is null and void by the agreement between Defendant 1 and Nonparty 2, and the Plaintiff does not constitute a bona fide third person under Article 108(2) of the Civil Act. As such, Defendant 2 may assert the invalidity of the assignment of the instant claim against the Plaintiff. As the assignment of the instant claim becomes null and void, the Plaintiff’s seizure against Nonparty 2, the assignee, who is the obligor, is also null and void. Accordingly, the claim for payment of the instant deposit is still against Defendant 1.

B. Determination

(1) As to the assertion regarding the revocation of fraudulent act

First, since the assignment of claims of this case was revoked as a fraudulent act, it is examined whether the seizure of this case is null and void, and around December 13, 201, in the related lawsuit of this case filed by Defendant 2 against Nonparty 2, the assignment of claims of this case was conducted for the purpose of evading compulsory execution, and the judgment became final and conclusive at that time, as seen earlier, the above judgment became final and conclusive. However, the plaintiff seized the right to claim payment of the deposit of this case with Nonparty 2 as the debtor for the purpose of preserving the transfer income tax claim against Nonparty 2 in view that the assignment of claims of this case is true, and thus, the plaintiff is not a beneficiary or subsequent purchaser of the above fraudulent act, and the revocation of the fraudulent act does not fall under the relative effect, that is, the relative effect of the revocation of the fraudulent act, that is, between the creditor who filed a lawsuit of revocation of the fraudulent act and the beneficiary or subsequent purchaser who became the defendant of the lawsuit, and therefore, it cannot be asserted that the judgment in favor of this case is effective against the plaintiff.

(2) As to the assertion that a conspiracy is invalid as a false conspiracy

Next, in the event that the assignment of claims in this case is invalid as a false conspiracy and the seizure of the plaintiff in this case is invalid as a result of such false conspiracy, and the provisional attachment authority corresponds to a third party who newly has a legal interest based on a false conspiracy, and as long as that third party is bona fide, the provisional attachment authority cannot assert the invalidity of the above false conspiracy (see, e.g., Supreme Court Decision 2009Da35743, Mar. 25, 2010). The third party is presumed in good faith, barring any special circumstance. Thus, the third party is presumed to be liable for assertion and proof of the fact that the third party is bad faith, and the third party is liable for the invalidity of such false indication (see, e.g., Supreme Court Decision 2002Da1321, Mar. 10, 2006).

In light of the above legal principles, the assignment of the instant case to Nonparty 2 by filing the instant lawsuit against Defendant 2 and Defendant 2 with the intention of evading compulsory execution, and the judgment became final and conclusive around that time after winning a favorable judgment that the assignment of the instant case was aimed at evading compulsory execution. According to the above, the assignment of the instant case is null and void as a false conspiracy, but the assignment of the instant case is deemed true, and thus, the assignee Nonparty 2 as the obligor is deemed to be the third party under Article 108(2) of the Civil Act. According to the evidence No. 1, the Plaintiff’s attachment of the right to claim payment of the instant case by designating Nonparty 2 as the obligor around November 8, 2009 and the Plaintiff as the third obligor, and the Plaintiff as the third obligor, with the same court ruling No. 2009hap1175k on the same month, and the above decision was delivered on around the same day, and there was no evidence to acknowledge that the Plaintiff did not have any other reasons to recognize the assignment of the instant case.

Defendant 2, even if the Plaintiff is a bona fide third party, the attachment of the instant case was conducted after the Defendant attached the right to claim the payment of the instant deposit. However, the Plaintiff merely asserted that the attachment of the instant case is valid only for the remainder of the money obtained by deducting KRW 334,876,71, which was the result of the Defendant’s prohibition of disposition based on the above attachment from the deposit money, by means of a false declaration of conspiracy.

On November 8, 2007, in order to preserve the claim for the penalty against Defendant 2 with Defendant 1 as the debtor around November 8, 2007, Defendant 2's claim for the payment of the deposit money of this case was provisionally seized to Seoul Southern District Court 2007Kahap2915, and issued a seizure and collection order based on the provisional seizure of this case to the same court around October 15, 2008, and issued the above seizure and collection order to the plaintiff around that time. Since the seizure of the claim for payment of the deposit of this case with Nonparty 2 as the debtor around October 4, 201, the plaintiff's claim for payment of the deposit money of this case constitutes a bona fide third person under Article 108 (2) of the Civil Act and the third debtor as the debtor, the plaintiff's claim for the payment of the deposit money of this case cannot be asserted as valid as the result of the provisional seizure of this case's claim for the provisional seizure of this case against the plaintiff 2 without any other reasons.

C. Sub-committee

Therefore, the provisional attachment and seizure of the right to claim the payment of the deposit of this case, which Defendant 2 made by Defendant 2 to Defendant 1 as the debtor, are conducted after the assignment of the credit of this case by Defendant 1, and it is not effective within the scope of KRW 357,068,360 transferred by Nonparty 2. The plaintiff who subrogated Nonparty 2 for the preservation of the transfer income tax claim against Nonparty 2 can seek confirmation that the right to claim the payment of the deposit of this case is against Nonparty 2, and as long as the defendant 2 contests this, he has the interest of confirmation.

4. Conclusion

Thus, the plaintiff's claim of this case against the defendants is justified, and this is accepted.

Judge Park Soon-hee (Presiding Judge)

1) At the first instance court of a lawsuit of demurrer against Defendant 1, etc. filed by the said Nonparty 4 and Defendant 2 against Defendant 1, the claim against Defendant 1 was dismissed, and the said judgment became final and conclusive around October 2008 as the dismissal of the appeal and the withdrawal of the appeal.