Korea Credit Guarantee Fund (Law Firm 21st century General Law Office, Attorneys Park Jae-woo et al., Counsel for the plaintiff-appellant)

Defendant

November 13, 2015

Gwangju District Court Decision 2014Da512027 Decided May 6, 2015

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Of the distribution schedule prepared by this Court on April 30, 2014 in the dividend proceedings No. 186, this Court deleted the amount of 6,062,627 won against the defendant, and corrected the amount of 6,458,563 won against the plaintiff to 12,521,190 won, respectively.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. On April 21, 1990, the Plaintiff guaranteed the obligation to return the interest and interest of the stone without any stone generated from the loan of KRW 200,00,000,000 each of the National Agricultural Cooperatives, the Yangyang-gun Branch of the Agricultural Cooperatives, and the National Agricultural Cooperatives, and the National Agricultural Cooperatives, and the National Agricultural Cooperatives, and the National Agricultural Cooperatives, and the National Agricultural Cooperatives, and the National Agricultural Cooperatives, and the National Agricultural Cooperatives, and the National Agricultural Cooperatives, have received a favorable judgment by filing a lawsuit claiming indemnity against the stone after paying the above interest and interest of the stone on behalf of the National Assembly stones (this Court Decision 92Da2167, Apr. 30, 192; 92Da2167, Apr. 30, 199); and all of the above decisions became final and conclusive by the court on May 12, 1992; 200,31, 200329, Feb. 23, 2002).

B. Unclaimed stone owned a factory site (hereinafter “instant land”). Nonparty 1 owned a building on the said land without title (hereinafter “instant building”). Nonparty 1 filed a claim suit against Nonparty 1, including land rent, etc. (Seoul Central District Court Decisions 2008Da10391, 9429, Jan. 21, 2009; 2009Na21685, 21692, Oct. 14, 2009; 2009Da90160, 90177, Aug. 19, 2010).

C. In the judgment on April 7, 2008, the Plaintiff seized and collected the “brupt claim against the Plaintiff and claim against the third party, etc., for which the third party would be paid the obligor when obtaining the original copy of the judgment with executory power, such as winning the Plaintiff, reconciliation, and conciliation judgment,” among the judgment on April 7, 2008 as indicated in paragraph (a), “The third party’s claim, etc., for which the third party would be paid to the obligor” (this court No. 20085, No. 256,305,607 won), and the above seizure and collection order (hereinafter “instant seizure and collection order”) were served on November 31, 201 on the non-party 1.

D. Unclaimed stones filed an application for substitute execution to remove the instant building in accordance with the bale removal and delivery decision and filed an application for substitute execution on September 6, 2010. However, prior to the alternative execution, Nonparty 1 voluntarily removed the said building, and the transfer of the claim against Nonparty 1 regarding the alternative execution cost to Nonparty 2. On July 20, 201, Nonparty 2 filed an application with Nonparty 1 for the determination of alternative execution cost with this court No. 201592, Sept. 15, 201, and filed an appeal against Nonparty 1 for the determination of alternative execution cost, but the said decision became final and conclusive around that time.

E. Under the determination of the amount of litigation costs against Nonparty 1 (Seoul Central District Court 201. 8. 201. 201. 201. 8. 201. 8. 26. 201. 201. 321, 3322 of the instant movable, the non-party 1 filed an application with the Seoul Central District Court on June 26, 2012 as to the non-party 1’s claim for reimbursement of the above alternative execution costs that he/she acquired from the non-party 1’s building site, and the non-party 2 filed an application for compulsory execution against the non-party 1 with respect to the non-party 1 with respect to the non-party 1’s claim for restitution of unjust enrichment against the non-party 1 (hereinafter “the instant claim”), the non-party 2 filed an additional claim for restitution of unjust enrichment against the non-party 1 with respect to the non-party 2’s claim for restitution of unjust enrichment from the instant land.

F. On April 17, 2013, based on the instant seizure and collection order, the Plaintiff filed a lawsuit against Nonparty 1 for the claim for the collection amount, and received a judgment ordering the payment of KRW 34,557,873 on August 27, 2013 (this Court Decision 2013Da504616, Oct. 17, 2013). When the said judgment became final and conclusive around that time, the Plaintiff filed an application for compulsory execution against the instant movable on October 17, 2013 with the enforcement title.

G. As a result of compulsory execution against the instant movable property, the instant movable property was sold in KRW 20,00,000, but the enforcement officer deposited the said proceeds with the court No. 556, on the ground that the Plaintiff’s application for the exclusion of distribution against Nonparty 2 was made, and the enforcement officer deposited the said proceeds under this court No. 2014Hun-Ba186, Apr. 30, 2014 (hereinafter “instant distribution procedure”) with respect to the distribution procedure (hereinafter “instant distribution procedure”), the amount to be distributed to April 30, 2014, 13,406,785 won, excluding KRW 6,615,700 for enforcement expenses, was prepared as follows, and the Plaintiff filed the instant lawsuit on May 5, 2014, within seven days after raising an objection against the entire amount of dividends against Nonparty 2 on the date of the said distribution.

A person shall be appointed.

H. On May 5, 2013, after filing an application for compulsory execution against the instant movable, Nonparty 2 died on May 5, 2013, and Nonparty 3 and Nonparty 4, the wife of which was the Defendant, Nonparty 3, and Nonparty 4, but Nonparty 3 and Nonparty 4 renounced inheritance, and the Defendant inherited Nonparty 2 solely.

[Grounds for Recognition] Unsatisfy, entry of Gap evidence 1 to 10 (including each number), the purport of the whole pleadings

2. Determination as to the cause of action

In the distribution procedure of this case, the Plaintiff asserted that the amount of the Plaintiff and the Defendant’s dividend amount should be revised according to the distribution schedule prepared in the distribution procedure of this case, on the premise that Nonparty 2’s claim cannot be asserted against the Plaintiff as the assignee of the claim, on the following grounds: (a) Nonparty 2’s claim was transferred to Nonparty 1; (b) the Plaintiff seized the claim of this case for the stone without permission according to the seizure and collection order of this case; and (c) the date the above seizure and collection order was served to Nonparty 1 after transferring the claim of this case to Nonparty 2 to Nonparty 2; and (d) Nonparty 2 can only exercise the claim of this case; and (e) Nonparty 2 cannot oppose the Plaintiff as the assignee of the claim.

According to the reasoning of the judgment below, Gap evidence Nos. 5-1 through 3, 16-16 of the evidence No. 8, and this court, the Seoul Central District Court 2009da10391, Seoul High Court 2009Da21680, Seoul High Court 2009Da90160, the Seoul High Court ordered the non-party 1 to remove the building of this case and deliver the land of this case to the non-party 1, and dismissed the claim for return of unjust enrichment equivalent to the rent which the non-party 5 raised against the non-party 1 on the premise that the non-party 5 was co-owners of the land of this case, and the non-party 1 was not subject to attachment and collection order of this case on the premise that the non-party 1 was not subject to attachment and collection order of this case on the premise that the non-party 2 was not subject to attachment and collection order of this case on the ground that the non-party 1 was not subject to attachment and collection order of this case.

Therefore, the plaintiff's assertion based on the premise that the plaintiff seized and collected the claim of this case of stone is without merit without any further review.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason. Since the judgment of the court of first instance with different conclusions is unfair, it is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Song-young (Presiding Judge)

1) According to the above distribution schedule, there may be misunderstandings as if the claim of the above case was included in the above case because the number of 11tabag1792 is stated on the name side of the non-party 2. However, according to the detailed contents of the amount of credit, it can be known that the non-party 2 was a claim for return of unjust enrichment from the possession of the above land that the non-party 2 acquired from the stone without permission. Meanwhile, the claim of the above 11tagag1792 was a claim for the above substitute execution against the non-party 1 of the stone that the non-party 2 acquired from the stone without permission. The amount is 2,292,160 won, which was 2,00 won, after filing a lawsuit for revocation of a fraudulent act against the defendant who is the inheritor of the non-party 2, the plaintiff was awarded a favorable judgment, and was distributed in the distribution procedure of