2016Da35390 Collections

Plaintiff:

Attorney Seo-dae et al., Counsel for the plaintiff-appellant

Defendant 1 and one other

Law Firm Lee In-bok, Counsel for the plaintiff-appellant

Attorney Yang Sung-soo

Seoul Central District Court Decision 2016Na14804 Decided July 20, 2016

October 29, 2020

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Facts and issues

A. According to the reasoning of the lower judgment, the following facts are revealed.

(1) On March 19, 2012, the Plaintiff received a claim seizure and collection order against the Defendants and the non-party 1 with respect to the non-party 1’s claim amounting to KRW 183,309,000 (Seoul Southern District Court No. 2012TJ 2014; hereinafter “the claim seizure and collection order”), and around that time, the above decision was served on the Defendants.

(2) On June 22, 2012, Nonparty 1 filed a lawsuit against the Defendants for the payment of KRW 559,219,358 (Seoul Central District Court 2012Gahap52477) on the ground of friendship or withdrawal from the business (Seoul Central District Court 2012Gahap52477). On June 21, 2013, the above court rendered a judgment dismissing the claims for payment of KRW 183,309,00 among the claims against Nonparty 1 and the remainder of the claims against Nonparty 1. The judgment became final and conclusive around that time.

(3) On May 22, 2014, Nonparty 2, the mother of Nonparty 1, issued a seizure and collection order (No. 2014TB District Court No. 2014TB2, No. 20869; hereinafter referred to as “the seizure and collection order”) with respect to the claims to be returned due to Nonparty 1’s insolvency against the Defendants, the Defendants, and the amount of Nonparty 1’s claims KRW 1,896,00,00, and Nonparty 2 received the seizure and collection order with respect to the claims to be returned due to Nonparty 1’s withdrawal from the partnership. At that time, the original copy of the decision was

(4) On March 4, 2015, Nonparty 2 filed a lawsuit against the Defendants on the basis of the second claim attachment and collection order, “The Defendants jointly pay KRW 99,806,683 and damages for delay to Nonparty 2.” The Defendants asserted that the Defendants deposit the remainder of the claims against Nonparty 2 on July 31, 2015, with KRW 90,000,000 to be collected jointly by the Defendants, and Nonparty 2 paid the remainder of claims against the Defendants by July 15, 2015, based on the Reconciliation recommendation (hereinafter “Reconciliation recommendation order”). The Defendants asserted that the Defendants deposit the remainder of claims against the Defendants on July 29, 2015, KRW 380,000,000,000 to the Plaintiff on July 16, 2015.

B. The main issue of the instant case is whether the ruling of recommending a compromise is effective before the ruling of recommending a compromise becomes final and conclusive with the waiver of part of the claim in the claim for collection, and whether the ruling of recommending a compromise affects the other collection creditors who had received a seizure

2. Where a decision on recommending a compromise has become final and conclusive with the purport to waive part of the claims in a collection deposit lawsuit, whether the decision on recommending a compromise affects the other collection creditors who had received the seizure and collection order before such decision

A. If a collection order has been issued with respect to a monetary claim, the creditor shall obtain the right to directly collect the seized claim without subrogation pursuant to Article 229(2) of the Civil Execution Act. The creditor may waive his/her right to collect (Article 240(1) of the Civil Execution Act), but in such case, the creditor may waive his/her right to collect the seized claim (Article 240(1) of the Civil Execution Act), and there is no influence on the execution claim or the seized claim. Meanwhile, the creditor may not perform any act beyond the purpose of collection, such as acts

In a lawsuit for collection, where the collection obligee has made a judicial compromise with the third obligor that the obligee would waive the remainder of the claims by paying a part of the claims subject to attachment, "the part of waiver of the claim for payment" means the part concerning the obligee's right to collect which the collection obligee can legally waive and terminate the lawsuit without exercising the right to collect to the third obligor. On the contrary, even if the collection obligee used the expression that the remaining claims would waive, it cannot be viewed as a waiver of the obligation itself without the right to dispose of the obligee's right to collect. Therefore, the effect of judicial compromise as mentioned above does not extend to the other obligee who exercises the right to collect based on a separate collection order.

B. Where multiple creditors have received a seizure and collection order for the same claim, the res judicata effect of the final and conclusive judgment in the collection claim filed by either of the creditors does not extend to the other collection creditors who received the seizure and collection order prior to the date of closing of argument in the lawsuit. The reasons are as follows. (1) The subjective scope of res judicata effect of a final and conclusive judgment is, in principle, limited to another person where the final and conclusive judgment has been received by the parties, successors subsequent to the closure of pleadings, or persons who possessed the object of the claim on their behalf, except as otherwise provided for in law, such as a family relation lawsuit or company-related lawsuit (see Article 218(1) and (3) of the Civil Procedure Act). Therefore, even if the subject matter of the lawsuit brought by the collection creditors is identical to the existence of a claim subject to seizure against the garnishee of the debtor, the subject matter of the lawsuit cannot be said to affect the res judicata effect of the final and conclusive judgment between the parties to the lawsuit and other third parties.

(2) Article 249(3) and (4) of the Civil Execution Act provides that a garnishee, who has been filed in a lawsuit for collection in a lawsuit for collection, may apply to a creditor with an executory exemplification as co-litigants by the first date for pleading to order him/her to participate in the lawsuit on the side of the plaintiff, and that even if an obligee ordered to participate in the lawsuit does not participate in the lawsuit, the judgment on the lawsuit shall have the effect of judgment on the lawsuit. The foregoing provision also provides that a creditor who did not receive an order for intervention may extend the scope of the judgment’s effect through

(3) The garnishee may avoid continuing to bring a lawsuit against himself by making in the lawsuit of collection an application for intervention order to another execution creditor or by making a repayment or deposit for the part in which the order has been filed or the part in which the order has been lost has been lost. Accordingly, even though a final and conclusive judgment in a lawsuit of collection amount raised by a creditor does not extend to any other creditor, it is not unreasonable to the garnishee.

C. The final and conclusive decision of recommending compromise has the same effect as a judicial compromise (Article 231 of the Civil Procedure Act). The legal doctrine as to the final and conclusive decision of a debt collection lawsuit as seen above applies likewise to cases where a decision of recommending compromise has become final and conclusive in a debt collection lawsuit filed by a creditor against a third debtor. Therefore, even if a decision of recommending compromise is final and conclusive in a debt collection lawsuit instituted by a creditor, the res judicata effect of the said decision of recommending compromise does not extend to the other debt collection creditors

3. Determination on the instant case

A. The lower court determined based on the foregoing factual basis as follows. The legal doctrine of the Supreme Court Decision 93Da52808 Decided August 12, 1994 regarding res judicata of a creditor subrogation lawsuit applies to the instant case where a ruling of recommending a compromise, which gives up part of a claim in the collection amount lawsuit, became final and conclusive. As long as Nonparty 1 became aware of the fact that the prior collection lawsuit was instituted by Nonparty 1, the res judicata effect of the instant ruling of recommending a compromise has been binding on the Plaintiff, and the Plaintiff cannot claim the remainder exceeding KRW 90 million among the claims against Nonparty 1’s Defendants against the res judicata effect of the said ruling of recommending a compromise.

B. Such determination by the court below seems to have been premised on the premise that the part of the waiver of the claim in the decision of recommending reconciliation in this case pertains to the claims against the Defendants against Nonparty 1. However, even if the decision of recommending reconciliation in this case, which gives payment of KRW 90 million in the prior collection lawsuit between Nonparty 2 and the Defendants, becomes final and conclusive, the remaining part of the waiver of claim means that Nonparty 2 would no longer exercise the claims against the Defendants based on the second claim seizure and collection order, and it cannot be deemed that Nonparty 2 gave up the claims against the Defendants. Nonparty 2’s waiver of the collection right does not extend to the Plaintiff who filed a lawsuit seeking the subsequent review in this case based on the separate claim seizure and collection order based on the separate claim seizure and collection order. Even if it is deemed that Nonparty 2 renounced the seized claim in the prior collection lawsuit as shown in the court below, it does not affect the res judicata effect against the Plaintiff who received the first claim seizure and collection order as to the above claim before the date of the decision of recommending reconciliation in this case becomes final and conclusive. Accordingly, the Plaintiff may seek payment against the Defendants.

The above Supreme Court Decision 93Da52808 Decided a judgment against a creditor in a creditor subrogation lawsuit is related to a case in which the judgment against a creditor has become final and conclusive, and the meaning of waiver is different from the case in which the decision of recommending a compromise with the contents of a waiver of a part of a claim in a creditor subrogation lawsuit has become final and conclusive. Furthermore, even though the subject matter of a lawsuit for creditor subrogation and a debt collection lawsuit may be deemed to be the same as the existence of a claim against a third debtor against a debtor, the subject matter of a lawsuit may be deemed to be identical to the existence of a claim against a third debtor, but it does not necessarily

Therefore, the court below erred by misapprehending the legal principles on the validity of the ruling of recommending reconciliation in the collection amount lawsuit, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error

4. Conclusion

The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok