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1. Compulsory execution against the Defendant’s Plaintiff based on the payment order (Seoul District Court Branch No. 2012 tea3648).
Reasons
Facts of recognition
C around May 15, 2012, around May 15, 2012, transferred C’s loan claims amounting to KRW 2 million to the Defendant (hereinafter “transfer of claims of this case”) and notified the Plaintiff of the transfer of claims at that time.
On September 12, 2012, the Defendant applied for a payment order against the Plaintiff with this Court No. 2012 tea3648 and applied for a payment order with respect to the Plaintiff, and on September 18, 2012, the Defendant received a payment order stating that “the Plaintiff shall pay to the Defendant the amount of KRW 2,00,000 and the amount calculated at the rate of 24% per annum from June 28, 2002 to the date of full payment,” and the said payment order (hereinafter “instant payment order”) was finalized on September 18, 2012.
[Ground of recognition] The plaintiff asserts that the above assignment of claim falls under a litigation trust and becomes null and void in relation to the defendant's receipt of the payment order of this case based on the assignment of claim of this case.
In a case where the assignment of claims primarily takes place with the aim of having the said assignment of claims do not constitute a trust under the Trust Act, Article 6 of the Trust Act shall be deemed null and void, even if the said assignment of claims does not constitute a trust under the Trust Act (see Supreme Court Decision 2000Da4210, Dec. 6, 2002). The procedural acts in a lawsuit trust refer to the act of widely promoting the realization of rights through a judicial institution, not limited to the procedural acts under the Civil Procedure Act, and is also included in an application for compulsory execution under the Civil Execution Act (see Supreme Court Decision 2009Da55808, Jan. 14, 2010). Whether it is the primary purpose of having the said act of litigation shall be determined in light of the course and method of concluding the assignment of claims, the interval between the transferor and the transferee after the transfer contract
(see, e.g., Supreme Court Decision 2003Da20909, 20916, Mar. 25, 2004). We examine the case.