Plaintiff (Law Firm Thai, Attorneys Lee Woo-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and 2 (Law Firm Lee & Lee, Attorneys Kang Jong-ho et al., Counsel for the defendant-appellant)

September 30, 2009

Seoul Northern District Court Decision 2007Gahap1467 Decided September 21, 2007

1. The part concerning defendant 3 school juristic person among the judgment of the court of first instance shall be modified as follows:

A. Defendant 3’s school foundation shall pay to the Plaintiff 2,00,000,000 won with 5% per annum from November 1, 2007 to December 23, 2009, and 20% per annum from the next day to the day of full payment.

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

2. The Plaintiff’s appeal against Defendant 1 (Non-Party 1 of the Supreme Court Decision) and Defendant 2 (Non-Party 2 of the Supreme Court Decision) is dismissed in entirety.

3. The total costs of the lawsuit between the Plaintiff and Defendant 3 educational foundation shall be borne by the said Defendant, and the costs of the appeal between the Plaintiff and Defendant 1 and Defendant 2 shall be borne by the Plaintiff.

4. The above paragraph 1(a) may be provisionally executed.

The judgment of the first instance court is revoked. The contract for the assignment of claims concluded on August 1, 2006 between Defendant 1 and Defendant 2 with respect to the claims listed in the separate sheet shall be revoked. Defendant 2 Co., Ltd. shall notify Defendant 3 educational foundation of the cancellation of the above contract for the assignment of claims listed in the separate sheet. Defendant 1 and Defendant 3 educational foundation shall pay to each Plaintiff the amount calculated by the ratio of 20 billion won per annum to 20% per annum from November 1, 2007 to the date of full payment (the Plaintiff partially modified the claim for delay damages in the purport of the claim).

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking account of the whole purport of the arguments in the items in Gap evidence 1-1, 2, 3, Gap evidence 2-5, Eul evidence 4 and 5.

A. On November 1, 2003, Defendant 1 entered into a lease agreement with Defendant 3’s school foundation (hereinafter “Defendant 3’s private teaching institute”) on the lease deposit for the building for the 1st floor in Nowon-gu, Seoul Special Metropolitan City (hereinafter “○○ hospital room”) located within the ○○ hospital (hereinafter “○○ hospital room”) with the term of lease deposit for KRW 2 billion, and the term of lease for each funeral hall facility from November 1, 2003 to October 31, 2005 (hereinafter “lease agreement”). At that time, Defendant 1 entered into a lease agreement with the term of lease extended on November 1, 2005 to October 31, 2007.

B. On June 28, 2006, the Plaintiff agreed with Defendant 1 to transfer the bonds listed in the separate sheet (hereinafter “instant bonds”) to the Plaintiff (hereinafter “transfer of the instant bonds”) by Defendant 1, and then, attached with the lease agreement concluded on November 1, 2005 between Defendant 1 and Defendant Private Teaching Institutes, a notary public obtained a deed signed by a notary public at the joint law office of the Republic of Korea, along with the claim transfer and takeover contract containing the content.

C. On June 28, 2006, the Plaintiff was drafted by Defendant 1 with the content that “if the Plaintiff borrowed KRW 400 million from the Plaintiff on June 27, 2007, the interest rate of KRW 300 million per month, and due date of payment on June 27, 2007, and the Defendant 1 delays the repayment of principal or interest, the Plaintiff shall be informed that there is no objection even if he was immediately subject to compulsory execution.”

D. Meanwhile, on June 28, 2006, the Plaintiff entered into a lease agreement between Defendant 1 and Defendant 1, and notified Defendant 1 of the purport that he would delegate the notification of the assignment of the claim in its name (No. 3), but immediately notified Defendant 1 of the fact of the assignment of the claim in this case on January 12, 2007 without notifying Defendant 2 of the fact of the assignment of the claim in its name. As to this, on January 26, 2007, the Plaintiff was changed from Defendant 1 to Defendant 2 (hereinafter “Defendant Company”) and the lessee of the lease agreement between Defendant 2 and Defendant 1 (hereinafter “Defendant Company”) on August 1, 2006, and thus, the Plaintiff notified Defendant 1 of the fact that he did not bear the obligation to return the above lease deposit.

E. On October 31, 2007, the Defendant Private Teaching Institute was handed over the ○○ Hospital funeral room from the Defendant Company.

2. Determination on the claim for money against Defendant 1

A. The plaintiff's assertion

On June 28, 2006, the Plaintiff lent 2.4 billion won to Defendant 1 as interest rate 3%, and 2. Even if not directly lending to Defendant 1’s Dong, the Plaintiff loaned 1 billion won to Nonparty 4 and Nonparty 5 living together with Defendant 1’s Dong, around November 2004, around August 2005, around 40 billion, and around June 28, 2006, respectively, and Defendant 1 concurrently purchased or guaranteed the above debt against the Plaintiff on June 28, 2006, and even if not, Defendant 1 transferred the claim of this case to the Plaintiff on June 28, 2006, Defendant 200 million won to the Plaintiff with the obligation to transfer the loan of this case excluding the loan of this case to Defendant 200 million won to the Plaintiff (hereinafter “the loan of this case”). Thus, Defendant 1 transferred the loan of this case to the Plaintiff on August 1, 2006.

(b) Markets:

(i)The loan section

With respect to whether the Plaintiff directly lent KRW 2 billion to Defendant 1, the Plaintiff’s assertion on this part is insufficient to acknowledge only with the descriptions of health care unit, Gap’s evidence Nos. 1-1, 2, 3, Gap’s evidence Nos. 2 and 3, Gap’s evidence Nos. 6-1 through 17, Gap’s evidence No. 8, and Gap’s evidence No. 9.

D. Assumption of the obligation or warranty

As to whether Defendant 1 took over or guaranteed the obligation of Nonparty 4 and 5 against the Plaintiff, it is not sufficient to recognize it solely on the statement of Nonparty 1-2, and on the other hand, there is no evidence to prove that Defendant 1 took over or guaranteed the obligation of Nonparty 4 beyond the transfer of the instant claim to the Plaintiff. Thus, this part of the Plaintiff’s assertion is without merit.

【 non-performance of obligation or tort part

In light of the Plaintiff’s evidence Nos. 5, 6-6-6, 10, 13, 17, and 17 evidence No. 17, and the purport of the entire pleadings as a result of the order to submit financial transaction information to Nonparty 4 and foreign exchange bank, Defendant 1 guaranteed the Plaintiff’s obligation by receiving 3 billion won from the foreign exchange bank on April 4, 2005, and as security, transferred the Plaintiff’s claim to return KRW 3 billion out of the lease deposit claim to Nonparty 6-6, which was established by Nonparty 1’s request to the Plaintiff on the same date. However, the Plaintiff’s transfer of the claim to Nonparty 1 to Nonparty 4, which was established by Nonparty 6-6 to the Plaintiff on the ground that the Plaintiff’s transfer of the claim to Nonparty 1 was based on a fixed date, and the transfer of the claim to Nonparty 1 to Nonparty 3, who was established by Nonparty 4 on April 3, 2006.

3. Determination on the revocation of fraudulent act and the claim for restitution against the defendant company

A. The plaintiff's assertion

(1) The Plaintiff asserts that the change in the name of the tenant of this case shall be deemed to have transferred the claim of this case to the Defendant Company. Defendant 1 and the Defendant Company recognized the fact that it is impossible to satisfy the Plaintiff’s claim as the obligee due to the shortage of joint collateral due to the dual transfer of the claim of this case or the lack of joint collateral in the situation of shortage. Accordingly, Defendant 1 was found to have failed to meet the Plaintiff’s claim of this case. Defendant 1 demanded that the Defendant Company, the beneficiary of this case, be notified that the dual transfer of the claim of this case, which is a fraudulent act, was cancelled and that the dual transfer of the claim of this case was cancelled due to the cancellation of the dual transfer of the claim of this case and restitution of its original state. Furthermore, Defendant 1 and the Defendant Company seek the return of KRW 2 billion

D. The plaintiff asserts that the plaintiff's right of revocation is exercised on behalf of the non-party 4 as the creditor of the non-party 4, because the non-party 4, who is the plaintiff's debtor, has a loan claim against the defendant 1.

B. Determination

With respect to whether the change in the name of the tenant of this case constitutes a fraudulent act, the change in the name of the tenant of this case from Defendant 1 to Defendant 3 is practically an assignment of claims as seen above. However, as acknowledged earlier, Defendant 1 offered the bonds of this case to the foreign exchange bank on April 4, 2005 and consented thereto by a certificate with a fixed date of the Defendant Private Teaching Institute. After that, Defendant 1 transferred the bonds of this case to Nonparty 3 on April 3, 2006, and thereafter, Defendant 1 changed the name of the tenant of this case in the name of the Defendant company upon the request of Nonparty 3 to secure real claims. According to the above facts, since the claims of this case at the time of change in the name of the tenant of this case had already been transferred to the foreign exchange bank or to Nonparty 3, it cannot be deemed that the transfer of the bonds of this case constitutes a fraudulent act. Accordingly, the Plaintiff’s assertion that this change in the name of the tenant of this case is no longer necessary to determine the change in the name of the tenant of this case.

4. Determination on the claim for the amount of money transferred to Defendant Private Teaching Institutes

A. Determination on the cause of the claim

The fact that the Plaintiff acquired the instant claim from Defendant 1 on June 28, 2006 and notified the Defendant Private Teaching Institutes of the transfer thereof by means of a certificate with the fixed date on January 12, 2007, is recognized as above. Since the instant lease agreement is apparent in fact that the contract term expires, barring any special circumstance, the Defendant Private Teaching Institutes is obliged to pay the Plaintiff KRW 2 billion to the Plaintiff, the assignee of the instant claim.

B. Judgment on the assertion of the Defendant Institute

(1) argument

㈎ 피고 1과 피고학원 사이에 이 사건 임대차계약상의 권리를 제3자에게 양도할 수 없다는 양도금지특약이 이루어졌는데, 원고가 이 사건 채권을 양도받을 당시 그와 같은 사정을 알았거나 알 수 있었다 할 것이므로 원고는 피고학원에 대하여 양수금을 구할 수는 없다.

㈏ 이 사건 채권은 이미 2005. 4. 4.자로 외환은행으로부터 30억 원을 대출받을 당시 외환은행에 채권양도 되었고, 그에 대하여 피고학원이 확정일자 있는 증서에 의하여 채권양도를 승낙한 이상, 원고는 이 사건 채권양수로서 외환은행에 대항할 수 없어 피고학원에게 양수금을 구할 수는 없다.

㈐ 피고 1이 2006. 4. 3. 소외 3에게 이 사건 채권을 양도하고 그 양도사실을 이 사건 채권양도 통지보다 앞선 2006. 10. 25.에 확정일자 있는 증서에 의하여 피고학원에게 통지하였으므로, 원고가 이 사건 채권양수로서 소외 3에게 대항할 수 없어 피고학원에 대하여 양수금을 구할 수는 없다.

㈑ 피고학원이 피고회사와 사이에 2006. 8. 1. 임대차계약을 체결한 후 그 임대차계약서에 대하여 사서증서의 인증을 받았는바, 이는 피고학원이 확정일자 있는 증서에 의하여 채권양도를 승낙한 것으로 볼 수 있어 결국 피고회사가 원고에 우선하므로 원고는 피고학원에 대하여 양수금을 구할 수는 없다.

Shed Judgment

㈎ 양도금지 특약 부분

1) Article 449(2) of the Civil Act provides that a special agreement on the prohibition of assignment of claims cannot be set up against a bona fide third party, which does not matter with the existence of a third party's negligence. However, it is reasonable to interpret that a third party's gross negligence should be treated as the same as the bad faith if there is gross negligence in the acquisition of claims without knowledge of the existence of a special agreement on the prohibition of transfer, and if there is gross negligence in the acquisition of claims, it is reasonable to interpret that a claim by transfer cannot be acquired as the assignee in bad faith (see Supreme Court Decision 96Da18281 delivered on June 28, 1996). Meanwhile, only on the basis of the existence of a certificate of claim as stipulated in a special agreement on the prohibition of transfer, the existence of the special agreement can not immediately be inferred with the bad faith or gross negligence of the transferee of the claims (see Supreme Court Decision 99Da67482 delivered on April 25,

2) Based on the above legal principles, Defendant 1 and Defendant 1 agreed that the transfer of all rights and obligations arising from the lease agreement between Defendant 1 and Defendant 1 cannot be conducted (see Article 17 of the Contract for Lease and Management and Operation of the House) without a prior approval from Defendant 1 and Defendant 1. According to the above facts, there is a "special agreement on transfer restriction" which requires a prior approval from Defendant 1 and Defendant 1 to transfer the instant claim to another person. Furthermore, in light of whether the Plaintiff knew or could have known of such circumstances at the time of transfer of the claim, the Plaintiff could not easily be seen as having any special agreement on transfer of the claim in the form of a simple special agreement between Defendant 1 and Defendant 1, on the premise that the transfer of the claim in this case was made in the form of a special agreement between Defendant 1 and Defendant 1 and Defendant 1, and thus, it could not be easily recognized that the transfer of the claim in this case was based on the premise that the transfer of the claim in this case’s gross negligence could not easily be easily known to the transferee.

㈏ 대항력 여부

(i) relating to the foreign exchange bank;

Defendant 1 borrowed KRW 3 billion from the foreign exchange bank on April 4, 2005, and transferred the claim to the foreign exchange bank of KRW 5 billion out of the total of the claim of this case and the claim of KRW 3 billion, and Defendant Private Teaching Institute consented to the above assignment of claim by a certificate with the same fixed date on the same day as above. Thus, according to the above facts, the part of the claim of this case and the claim of KRW 3 billion out of the claim of this case were transferred to the foreign exchange bank, and the remaining claim of KRW 2 billion remains as it is. However, according to the conclusion of the oral argument of the order to submit financial transaction information to the foreign exchange bank, the above claim of KRW 3 billion against the foreign exchange bank of KRW 3 billion was reduced to KRW 2 billion due to the repayment of the loan of Nonparty 6 corporation and KRW 4 billion on the premise that the above claim of KRW 7 billion was transferred to the foreign exchange bank of KRW 8 billion on April 29, 2008 and the above debt of the Defendant Private Teaching Institute was transferred to Nonparty 2.

2) The part concerning Nonparty 3

Article 450(1) of the Civil Act provides that "The transferor shall not oppose the obligor or any third party unless the obligor notifies the obligor of the assignment of nominative claim, or the obligor does not consent." In full view of the entire purport of pleadings as stated in the evidence No. 6-9 and 10, Defendant 1 transferred the instant claim to Nonparty 3 on April 3, 2006. However, Defendant 1 did not notify the Defendant Institute of the assignment of the claim. However, Nonparty 3 requested Defendant 1 to secure the real claim regarding the assignment of the claim, and entered into the instant lease agreement with the Defendant Institute in the name of the Defendant Company. However, Nonparty 3 requested Defendant 1 to transfer the instant claim owned by the Defendant Company to himself and requested Nonparty 3 to transfer it again, and Defendant 1 and Nonparty 3 did not jointly claim the assignment of the claim against Nonparty 3 on October 25, 2006 between Defendant 1 and Nonparty 201 and Nonparty 3 on August 3, 2006, and thus, it cannot be acknowledged as follows.

3) Regarding the authenticated portion of the deed signed by a private person on August 1, 2006

Article 450(2) of the Civil Act provides that "the notification or consent of the transfer of nominative claim shall not be set up against a third party other than the obligor, unless it is based on the certificate with a fixed date." In the above provision, "a deed with a fixed date" shall be deemed to include the case where the authentication of a deed signed by a private person is obtained, and Article 57(1) of the Notary Public Act provides that "the authentication of a deed signed by a private person shall be made by means of making the parties concerned sign or affix their seals on the deed signed by private person in front of a notary public, or after having them confirm

However, in this case, on August 1, 2006, at the request of Defendant 1, the fact that Defendant Company and Defendant Private Teaching Institutes entered into a lease agreement with the lessee to change the lessee from Defendant 1 to Defendant Company is recognized as above. In full view of the whole purport of pleadings in the statement No. 6 No. 10, Defendant 1 entered into an agreement to transfer Defendant 1’s business rights on the same day, the lease agreement was concluded in the name of Defendant Company as of August 1, 2006, and Defendant 1’s business rights, the lease deposit money, and the ownership of Defendant 1’s loan to Nonparty 3. Nonparty 3 was certified as a representative of Defendant 1 and the above agreement was signed by a notary public at the office of law in the territory of the Republic of Korea. Accordingly, according to the above facts of recognition, it cannot be deemed that the above agreement was signed between Defendant 1 and Nonparty 3, and that the above agreement was attached to the above private teaching institute’s agreement at the time of authentication of the above private teaching institute.

C. Sub-decision

Therefore, from November 1, 2007, the following day after the conclusion of the instant lease agreement on KRW 2 billion and the delivery of the Defendant Private Teaching Institutes to the Plaintiff, the Defendant Private Teaching Institutes is obligated to pay damages for delay calculated by the rate of 5% per annum as stipulated in the Civil Act and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment, until December 23, 2009, which is deemed reasonable for the Defendant Private Teaching Institutes to dispute about the existence and scope of the obligation to perform.

5. Conclusion

Therefore, the plaintiff's claim against the defendant private teaching institute shall be accepted within the extent of the above recognition, and the remaining claim against the defendant's private teaching institute and each claim against the defendant's defendant 1 and the defendant company shall be dismissed, without merit. Since the part concerning the defendant's private teaching institute in the judgment of the court of first instance as to the judgment of the court of first instance is partially unfair, the part concerning the plaintiff's private teaching institute in the judgment of the court of first instance concerning the defendant's private teaching institute in the judgment of the court of first instance concerning the defendant 1 and the defendant company in the judgment of the court of first instance concerning the conclusion is justifiable, and it is so decided

[Attachment of List]

Judges Jin-hun (Presiding Judge)