Notice of assignment with a fixed date and priority between decision of provisional seizure

A decision on the credit transfer with a fixed date and the decision on provisional seizure shall be made by the method after the arrival of the garnishee (in the case of the transfer of claims, after the debtor), of the original of the decision on provisional seizure.

Article 24 of the National Tax Collection Act

2012 Confirmation of claims for payment of deposit money 2181

Section AA

1. B Design Co., Ltd. and 22 others;

May 28, 2013

June 20, 2013

1. Among the Plaintiff and the Defendant BB Design, Defendant KimCC, Defendant Dmers, Defendant HaE, Defendant HaF, Defendant NewGGG, Defendant HH Steel, Defendant HK, Defendant Cho GJ, Defendant Cho K, Defendant Cho K, Defendant LLK, Defendant LeeM, Defendant LeeM, and Defendant Cho NN, it is confirmed that the PP department store of the Daegu District Court, on October 20, 201, was entitled to claim payment of deposit money against OOOs among OOs as deposited by the Daegu District Court No. 7352, 201.

2. Between the Plaintiff and the Defendants, it is confirmed that the right to claim for payment of deposit money against OO members deposited by the Daegu District Court on February 1, 2012 by the PP department store in the Daegu District Court No. 2012, 584 was the Plaintiff.

3. The costs of lawsuit shall be borne by the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. Assignment of claim of this case

(1) On September 8, 2011, Defendant BB Design Co., Ltd. (hereinafter “Defendant BB Design”) entered into a contract for debt repayment, etc. with the Plaintiff, with the content of the instant transfer on September 8, 201, with the effect that the Defendant BB Design would transfer the claim of OOO members to the Plaintiff among the claim for construction cost of OO located in Section 9 Section 9 in the PP department store (hereinafter “P department store”). (2) The Plaintiff and the Defendant BB Design entered into a contract for debt repayment, etc. with the content of the instant transfer on September 8, 2011, and obtained a fixed date from the 2945 office of the Dong Daegu Joint Law Firm as of September 29, 2011.

(3) On September 8, 201, the Plaintiff delegated the power to notify the assignment of claims by Defendant BB design, notified the PP department store of the said transfer, and the notification reached September 9, 201.

B. Provisional attachment, seizure and collection order against the claim for the construction price of this case, and assignment of claims

After and after the assignment of the instant claim, the Defendants except the Plaintiff and Defendant BB Design obligee, the obligee of the instant claim for construction cost against the PP department store of Defendant BB design, were subject to provisional seizure, seizure and collection order, and assignment of the claim, as indicated below, with respect to the instant claim for construction cost.

Table Omission of the Table

(c) Deposit of PP department stores;

On October 20, 2011, PP department stores issued a provisional attachment, collection order, transfer of claims, etc. with respect to the instant claim for the construction cost, under Article 248(1) of the Civil Execution Act and Article 487 of the Civil Act, the Daegu District Court deposited the repayment, deposit, and deposit for execution (hereinafter referred to as “the first deposit”) of OOOOOO in accordance with Article 248(1) of the Civil Execution Act and Article 487 of the Civil Act. On February 4, 2012, under Article 248(1) of the Civil Execution Act and Article 487 of the Civil Act, the Daegu District Court issued a repayment deposit and deposit (hereinafter referred to as “the second deposit”) of OOOOOOO in accordance with Article 248(1) of the Civil Execution Act and Article 487 of the Civil Act on the same ground as the first deposit.

Defendant KimCC filed a lawsuit against Defendant KimCC on November 22, 201 against the provisional seizure (a seizure) creditors as stated in the deposit recipient and deposit certificate of the first deposit on November 22, 2011, as the Daegu District Court 201Kadan80637, and as the first deposit OCC, Defendant KimCC has a claim for payment of deposit money to Defendant KimCC. On May 1, 2012, the said court rendered a ruling accepting the claim of Defendant KimCC. The said judgment became final and conclusive on July 19, 2012.

[Reasons for Recognition]

○ Defendant 1, 2, 4 through 10, 12 through 19, 21, 22, and 23: Judgment by deeming confession (Article 150(3) of the Civil Procedure Act)

○ Defendant 3 and 11: Facts without dispute; entries in Gap evidence 1 through 5 (including branch numbers), and the purport of the whole pleadings

against Defendant 20: Judgment by public notice (Evidence A to 1 through 5)

2. Determination as to the cause of action

A. The plaintiff's assertion

원고는, 2차 공탁에서 원고보다 선순위 채권자인 피고 이QQ의 채권액 OOOO원을 제외한 나머지 공탁금은 OOOO원인데, 위 나머지 공탁금은 원고의 채권액 OOOO원에 미치지 못하므로, 위 나머지 공탁금 OOOO원 전부에 대하여 공탁금출급청구권을 가지고, 1차 공탁에서 원고보다 선순위 채권자인 피고 김CC의 채권액 OOOO원을 제외한 나머지 공탁금은 OOOO원인데, 위 나머지 공탁금은 원고의 나머지 채권액 OOOO원(= OOOO원 - OOOO원)을 초과하므로 1차 공탁금 중 원고의 나머지 채권액 OOOO원에 대하여 공탁금출급청구권을 가지고 있다.

B. Determination

(1) If a claim is transferred double, the order between the assignee shall be determined by the date of receipt of the notice of transfer with the fixed date and after the date of acceptance with the fixed date with the date of receipt of the obligor, and such legal doctrine also applies to the case where the obligor of the provisional seizure order with respect to the same claim as the assignee of the claim, and thus, the order of transfer with the fixed date and the provisional seizure order shall be determined by the order after the arrival of the garnishee (in the case of the assignment of claim, after the obligor) of the original

(2) 위 인정사실에 의하면, 이 사건 각 공탁금인 피고 BB디자인의 PP백화점에 대한 이 사건 공사대금채권에 관하여 원고를 채권양수인으로 한 이 사건 채권양도의 확정일자 있는 통지가 피고 이QQ, 피고 김CC을 제외한 나머지 피고들을 채권양수 인, 가압류(압류)채권자로 한 채권양도통지, 가압류(압류)명령보다 먼저 PP백화점에 도달한 사실을 알 수 있으므로, 특별한 사정이 없는 한 이 사건 2차 공탁금 중 OOOO원(= 2차 공탁금 OOOO원 - 피고 이QQ의 채권액 OOOO원) 및 이 사건 1차 공탁금 중 원고의 나머지 채권액인 OOOO원(=원고의 채권액 OOOO원 - 2차 공탁금에서 인정된 원고의 채권액 OOOO원)에 대한 각 출급 청구권은 원고에게 있다.

(3) In addition, each of the deposits of this case is the so-called mixed deposit in which multiple assignees have deposited the relative uncertainty designated as the person to whom the deposit was made and the execution deposit was made on the grounds of competition of provisional seizure, etc.

3. Determination on the assertion of Defendant Dmeral Co., Ltd.

A. As to the assertion that the assignment of claims of this case is invalid as a false declaration of conspiracy

(1) Summary of the assertion

The Director of the Customer Director prepared by the Plaintiff is a document voluntarily prepared by the Plaintiff. In light of the tax invoice (No. 5-1 to 18) submitted by the Plaintiff, there was a transactional relationship for more than two years, and thus, Defendant BB design paid the Plaintiff all or part of the obligation arising from a commodity transaction during the said period. Therefore, the Plaintiff acquired the claim of the Plaintiff from Defendant BB design in excess of the amount of the above product price claim, and the assignment of the claim of this case is invalid as a false declaration.

(2) Determination

On the other hand, there is no evidence to acknowledge that the Plaintiff’s product price claim against Defendant BB design was false, or that the Plaintiff acquired the instant contract price claim in collusion with Defendant BB design by false means.

Fair Transactions in Subcontracting Act

Article 14 (Direct Payment of Subcontract Price)

(1) Where a cause falling under any of the following subparagraphs occurs, a person placing an order shall directly pay the subcontract consideration corresponding to the portion of the manufacture, construction, or service performed by the subcontractor:

1. Where a principal contractor is unable to pay the subcontract price due to the suspension of payment, bankruptcy, other similar causes, or the cancellation of permission, authorization, license, registration, etc. for his/her business and the subcontractor requests a direct payment of the subcontract price;

2. Where the ordering person, the prime contractor and the subcontractor agree to pay the subcontract price directly to the subcontractor.

3. When the subcontractor has requested a direct payment of the subcontract consideration where the principal contractor has failed to pay to the relevant subcontractor two or more installments of the subcontract consideration to be paid by the principal contractor as prescribed in Article 13 (1) or (3);

4. Where a principal contractor fails to perform his/her obligation to guarantee the payment of subcontract consideration under Article 13-2, and the subcontractor requests a direct payment of subcontract consideration;

(2) Where any ground under paragraph (1) arises, the obligation to pay the price to the principal contractor to the subcontractor, and obligation to pay the subcontract price to the principal contractor to the subcontractor shall be deemed extinguished within the scope

Enforcement Decree of the Fair Transactions in Subcontracting Act

Article 9 (Direct Payment of Subcontract Price)

(4) Where the requirements for direct payment of the subcontract consideration are strong and the subcontract consideration has been finally fixed for the portion manufactured, repaired or constructed by the subcontractor, the person ordering shall pay the subcontract consideration to the subcontractor according to the terms of the contract.

(3) Determination

When Defendant Dmers made a lawful demand for direct payment to PP department stores under the Fair Transactions in Subcontracting Act, or when the market price agreed by PP department stores, Defendant BB design, and Defendant Dmers to pay the subcontract price is earlier than the time when the Plaintiff’s notice of assignment of claims reaches the PP department stores, the Plaintiff’s claim for the construction price against Defendant BB design PP department stores is transferred to Defendant Dmers, the subcontractor, within the scope of the above direct payment request or direct payment agreement, and thus, the Plaintiff cannot set up against Defendant Dmers due to the validity of the assignment of claims.

On September 9, 201, the fact that the notice of assignment of the Plaintiff’s fixed date reaches the PP department store on September 9, 201 is insufficient to recognize that Defendant DDmers requested direct payment of the subcontract price to PP department stores in advance of the Plaintiff’s notice of assignment of the claims, or that Defendant DDmers agreed direct payment of subcontract price between PP department stores and Defendant BB design, and there is no other evidence to acknowledge otherwise.

Rather, in full view of the following circumstances, it is reasonable to view that the agreement between PP department stores, Defendant BB design, and Defendant D D Dmers to pay the subcontract price was made on September 14, 201, when the agreement was reached.

① Defendant BB design requested PP department stores to pay for the direct payment of the construction cost obligations related to metal construction works among Section 9 Section O of the PP department store, which is to be borne by PP department stores in relation to Defendant D Dmers, a subcontractor.

② Accordingly, the PP department store responded to the above request that the notice of assignment of claims bearing the official seal of the representative director of Defendant BB design will be sent to the PP department store.

③ As such, Defendant BB design entered into a contract on September 7, 201 with Defendant Dmera to transfer or acquire the total amount of construction cost claims to the PP department stores, including the OOO directors requested direct payments, and obtained a fixed date from the RP law firm on September 9, 201, with the date set by No. 1485 on September 201.

④ On September 14, 2011, a notice of assignment of claims on which the official seal of the representative director of Defendant BB design affixed was sent to PP department stores.

Therefore, since the time when the plaintiff's notification of the assignment of claims that meet the fixed date requirement takes precedence over the time when the defendant Dmers' direct non-payment agreement is established, the defendant Dmers' above assertion is not accepted.

4. Conclusion

If so, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.