Seoul High Court Decision 2006Na14888 decided May 1, 200

Daeyang Development Co., Ltd.

December 13, 2019

Seoul Central District Court Decision 2019Da501527 Decided May 31, 2019

1. The judgment of the court of first instance is modified as follows.

A. Of the instant lawsuits, the part of the claim for KRW 1,00,000,000 and damages for delay from March 7, 2015 to the date of full payment shall be dismissed.

B. The defendant shall pay to the plaintiff 1,806,00,000 won with 6% interest per annum from March 7, 2015 to January 17, 2020, and 15% interest per annum from the next day to the day of complete payment.

C. The plaintiff's remaining claims against the defendant are dismissed.

2. The above paragraph 1(b) may be provisionally executed.

3. 35% of the total costs of litigation shall be borne by the Plaintiff, and the remainder 65% shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 2,806,00,000 won with 6% interest per annum from March 7, 2015 to the service date of a copy of the complaint of this case ( January 29, 2019) and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

The reasoning for this part of this Court is as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, except in the following cases, since this part of the reasoning of the judgment of the first instance is the same as that of Paragraph 1.

The third party 5 of the lawsuit brought a lawsuit claiming the return of KRW 1 billion (hereinafter “the lawsuit claiming the return of investment proceeds”). The lawsuit claiming the return of KRW 1 billion and the delay damages therefrom (hereinafter “the lawsuit seeking the return of investment proceeds”). The “the claim asserted in this lawsuit and its establishment has been recognized” refers to the “claim for the return of investment proceeds of this case.”

Pursuant to Section 8 of Section 3, the defendant was sentenced to the judgment that "the defendant shall pay KRW 1 billion to the primary plaintiff, who is the plaintiff, and the defendant shall pay 1 billion to the primary plaintiff, the amount of damages for delay calculated at the rate of 20% per annum from June 26, 2010 to the date of full payment."

○ The third party’s 11th page “a contract was concluded,” and the following shall be added:

“Around December 2010, the Plaintiff agreed to delegate to the Plaintiff all the authority for the development of solar paths in relation to reclamation works of public waters (construction works, establishment and shares of SPCs, prepaid inputs, etc.);

○ The following shall be added to the 3rd page 21:

[Grounds for Recognition] Unsatisfy, Gap evidence 1 through 10, Eul evidence 1, the purport of the whole pleadings]

2. Determination

A. Whether the part of the lawsuit seeking the payment of KRW 1,000,000 among the claim of this case and damages for delay is legitimate

1) Since a final and conclusive judgment in favor of the party against whom a final and conclusive judgment in favor of the party has become final and conclusive has res judicata effect, the subsequent suit is unlawful in principle as there is no benefit in the protection of rights (see, e.g., Supreme Court Decision 2009Da64215, Dec. 24, 2009). Since the final and conclusive judgment has an effect on the successors subsequent to the closure of pleadings (see, e.g., Article 218(1) of the Civil Procedure Act), there is no benefit in re-instigation of a lawsuit against the successors to whom a claim established by a final and conclusive judgment was rendered after the closure of pleadings, barring any special circumstance (see, e.g., Supreme Court Decisions 2016Da13482, Sept. 28, 2016; 2013Da80443, Dec. 10, 2015). 2015. The same legal doctrine applies to the assignment of claims against the former obligee and new obligee, who did not satisfy the obligation.

However, even if the assignee of the claim can file a judicial claim for the interruption of the extinctive prescription, unless he/she satisfies the requisite for counterclaim, he/she cannot obtain a judgment for claimant, and as a result, he/she cannot obtain the ultimate realization of the claim. Also, since the transferor prior to meeting the requirements for counterclaim after the assignment of claim is still in the position of obligee in relation to the debtor, a judicial claim with the effect of interrupting prescription may be filed against the debtor, and thereafter, even if the transferor's claim is dismissed due to the obligor's acceptance, such judicial claim by the transferor does not constitute a claim by the unentitled person from the beginning to the beginning (see Supreme Court Decision 2008Du20109, Feb. 12, 2009). Considering such circumstances, it is difficult to judge that the transferor's status in the lawsuit is succeeded to the assignee at the time of meeting the requirements for counterclaim.

2) According to the facts and the evidence as seen earlier, the following facts or circumstances are recognized. The Plaintiff, pursuant to the instant investment agreement, paid the Defendant KRW 1,505,00,000 under the name of the Plaintiff, KRW 1,801,00,000, and KRW 317,623,000,000 under the name of the Nonparty controlling the Plaintiff at the time and KRW 317,00,000 under the name of the Nonparty, who was under control of the Plaintiff at the time, with KRW 1,505,000 + KRW 1,801,00,000 + KRW 317,000,000 + KRW 317,000,000 under the name of the Plaintiff, and thereafter, succeeded to the Plaintiff’s rights and obligations pursuant to the instant investment agreement. However, on February 2, 2010, the Plaintiff transferred the Plaintiff’s obligation to the Defendant with KRW 300,3000,000.

In light of the aforementioned facts and circumstances, and the Plaintiff’s assertion that he/she had been continuously transferred the right to claim for the return of investment proceeds of Tae-ro Development, it appears that the Plaintiff and Tae-ro Development had transferred the entire claim for the return of investment proceeds of this case on or around 2010, which was before the closing of argument in the lawsuit for the return of investment proceeds of this case, and that the Defendant consented to the transfer of the above claim on or after the closing of argument in the lawsuit, around 2015. Thus, the Plaintiff’s claim for payment in this case was based on the acquisition of the claim for the return of investment proceeds of this case, which was sought by Tae-ro Development in the lawsuit for the return of investment proceeds of this case. The subject matter of lawsuit in the lawsuit of this case is identical to the subject matter of lawsuit for the return of investment proceeds of this case. Moreover, the res judicata effect of the judgment on the return of investment proceeds of this case after the

So-called 1,00,000,000 won as part of the claim for the return of the investment deposit of this case and damages for delay thereof have been finally and conclusively determined in favor of the parties. As such, the part seeking the payment of KRW 1,000,000 among the lawsuit of this case and damages for delay thereof is unlawful because there is no benefit of protection of rights.

3) On March 6, 2015, after the conclusion of pleadings for the return of investment deposit, the Plaintiff asserted that the res judicata effect of the judgment in the above lawsuit is not applicable to the instant lawsuit, since the Defendant approved the Plaintiff’s debt KRW 3,306,00,00 through the inquiry of claims and obligations on March 6, 2015 (Evidence No. 6), written confirmation (Evidence No. 11), October 11, 2017, and written confirmation (Evidence No. 7) on August 2, 2018 (Evidence No. 7). However, each of the above documents appears to have been prepared in the process of the Defendant’s consent to transfer the right to the claim for the return of investment deposit of this case to the Plaintiff, and thus, it was merely deemed that the Defendant and the Plaintiff agreed to repay the claim for the return of investment deposit of this case to the Plaintiff, and thus, it is difficult to view that the Plaintiff’s claim for the return of investment deposit of this case was separate from the Plaintiff’s debt of this case.

4) The Plaintiff asserts that the claim in this case should be accepted in entirety, even after the issuance of a collection order to the Defendant on April 2, 2013, by the National Bank Co., Ltd., the creditor of Tae-ro Development, was issued a claim for the return of the investment amount in this case against the Defendant of Tae-ro Development, and that the Defendant consented to the assignment of the claim to the Plaintiff of Tae-ro Development without reservation. In a case where the obligor consented to the assignment of the claim without reservation of objection, the obligor cannot set up against the assignee, even if there were any grounds for asserting the assignment of the claim against the transferor. However, the res judicata effect of the final and conclusive judgment is merely binding upon the court, and it does not constitute a defense or right of objection that the obligor cannot exercise against the assignee without reservation of objection. The Plaintiff’s assertion in itself is without merit.

B. The remainder of the claims

According to the above facts, the defendant is obligated to pay to the plaintiff 1,50,000,000 won remaining after the remainder of 1,806,000,000 won excluding the amount payable in the lawsuit claiming the return of prior investment and the return of the amount payable in this case, and to pay damages for delay calculated at the rate of 15% per annum from March 7, 2015 to January 17, 2020, which is the date the decision of this court is rendered by this court, where it is deemed reasonable for the defendant to dispute as to the existence or scope of the obligation to pay the amount payable in this case, as the plaintiff seeks from March 7, 2015, which is the day following the approval by the defendant.

3. Conclusion

Of the instant lawsuits, the part seeking KRW 1,000,000 among the instant lawsuits and damages for delay thereof shall be dismissed. The Plaintiff’s claim on the remainder except the dismissed part shall be accepted within the scope of the foregoing recognition with merit within the scope of the foregoing recognition, and the remainder of the claims shall be dismissed as it is without merit. Since the part of the first instance judgment which differs from the foregoing conclusion is unfair, the Defendant’s appeal is partially accepted and the judgment of the first instance is modified

Judges Han-chul (Presiding Judge) Lee (Presiding Judge)