2016Na30362 Receiving money

A person shall be appointed.

Attorney ○-○, et al.

A person shall be appointed.

Seoul Northern District Court Decision 2015Da131472 Decided December 23, 2015

September 6, 2016

October 25, 2016

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The Defendant’s KRW 136,70,618 among the Plaintiff and KRW 50,669,639 among the Plaintiff, shall commence from May 22, 2015.

It shall pay 25% interest per annum from the date of full payment.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The court's reasoning for this case is that "No. 2 of the judgment of the court of first instance" No. 14 of the judgment of the court of second instance.

27. “B” as stated in the reasoning of the judgment of the first instance except for the part on August 19, 2009, the part on Sections 3, 12, and 4, 14, i.e., the first instance court decision, as follows, is cited pursuant to the main sentence of Article 420 of the Civil Procedure Act.

○ Parts of the mix

3. Judgment on the defendant's assertion

A. The defendant's assertion

① In determining the interruption and progress of extinctive prescription due to a report on claim in the real estate auction procedure, the type of the pertinent auction procedure (whether it is a compulsory auction procedure or a voluntary auction procedure) should be distinguished. Since extinctive prescription against the principal and interest of loan suspended due to a report on claim in the real estate auction case by a C Bank, the period of extinctive prescription against the principal and interest of loan, which was suspended due to a report on claim in the real estate auction case, is re-ended from April 14, 2010, the following day after the registration of collateral security in this case was cancelled, five-year commercial prescription has already expired prior to the application for the instant payment order

② The C Bank, without the Defendant’s consent, appropriated the amount distributed in the auction case in a voluntary manner contrary to Article 477 of the Civil Act.

③ In transferring C Bank’s principal and interest of loan to the Plaintiff, C Bank did not delegate its authority to notify the Plaintiff of the transfer. Therefore, the Defendant is not obliged to pay the principal and interest of loan to the Plaintiff, who is the transferee.

B. Determination as to whether the statute of limitations for commercial claims for the principal and interest of the above loan has expired

1) A creditor, who had been registered prior to the registration of the first decision on commencing the auction as a mortgage and who had become extinct by sale, can naturally participate in the distribution even if he/she did not make a demand for distribution at the auction procedure commenced upon the application of another creditor. If such creditor exercised his/her right by reporting the existence of a claim, its cause and amount to the court, the report on the claim is equivalent to the seizure under Article 168 subparagraph 2 of the Civil Act, and becomes effective to interrupt extinctive prescription as to the reported claim. If the creditor participates in the auction procedure by exercising his/her right by means of demand for distribution, report on the claim, etc., and the distribution schedule is prepared and confirmed as to only a part of the claim interrupted by the exercise of the right, and the distribution schedule becomes final and conclusive, the exercise of the right to the part for which the distribution schedule became final and conclusive is terminated, and the extinctive prescription for that part is interrupted at the time of the said termination (see, e.g., Supreme Court Decisions 2008Da8980, Mar. 26, 2009).

It will be said that it will be called.

2) In light of the above legal principles, according to the above facts, C Bank filed a report on the claim for the principal and interest of loan against the Defendant in an auction case, and thus, the extinctive prescription of the claim was suspended. On May 26, 2010, a distribution schedule was finalized that some of the claims was received as dividends. Since the Plaintiff who received the above principal and interest of loan from C Bank applied for the instant payment order to the court on May 21, 2015, which was five years before the date when the said distribution schedule became final and conclusive, the above claim for the principal and interest of loan was not completed. Accordingly, the Defendant’s assertion on this part is without merit.

C. Determination on the remainder of the Defendant’s assertion

As seen earlier, the Defendant’s remaining arguments are inconsistent with the facts acknowledged earlier, and thus, we accept them.

D. [No. 3] Even if the defendant's assertion that the notice of transfer was not received, the notice of transfer was issued on September 4, 2015 when the notice of transfer (No. 3) submitted by the plaintiff was delivered to the defendant at the latest.

2. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Jong-sub

Judges Kim Jae-sung

Judges Yoon Sung-sung