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(영문) 서울중앙지방법원 2018.04.10 2017가단43099
계약금 및 중도금 반환청구의 소
Text

1. Of the principal claim of the Plaintiff (Counterclaim Defendant), the amount of KRW 65 million and the interest rate shall be from September 23, 2017 to the date of full payment.

Reasons

1. Once the judgment prior to the merits was made ex officio, and when there exists a seizure and collection order on the claims, only the creditor may file a lawsuit for performance against the garnishee, and the debtor loses his qualification to file a lawsuit for performance on the claims subject to seizure;

(see, e.g., Supreme Court Decision 2009Da70067, Aug. 19, 2010). An order for seizure of claims takes effect upon delivery to a garnishee (see, e.g., Article 227(3) of the Civil Execution Act). Since the effect of the seizure of claims is limited to subordinate rights, it naturally extends to the interest or delay damages incurred after the seizure takes effect, but it does not extend to the interest or delay damages incurred after the seizure takes effect.

(1) In light of the purport of the entire pleadings, the Plaintiff’s succeeding intervenor received on September 18, 2017 the order of seizure and collection (Seoul Central District Court 2017TTTTTTTT 20113286), and issued the order of seizure and collection (Seoul Central District Court 2017TTT 2013286) as to the amount until it reaches KRW 1,100,335,367 out of the down payment and intermediate payment refund claim against the Defendants, and the above order of seizure and collection was served on September 22, 2017. Accordingly, it is recognized that the above order of seizure and collection was served on the Defendants, who are the garnishee, and the above order of seizure and collection was served on the date of service as to the down payment and intermediate payment claim amount of KRW 65 million,5 million, and damages for delay on the following day. As to the Plaintiff’s claims against the Defendants, the Plaintiff’s aforementioned portion of the principal and damages for delay against the Defendants’ respective 1.

The plaintiff's lawsuit on this part is unlawful.

2. The judgment on the merits and the counterclaim shall also be deemed to have been filed.

Gap evidence 2 and 3 (including paper numbers) respectively.

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