(영문) 수원지방법원 안양지원 2013. 10. 24. 선고 2012가합6405 판결

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(영문) 수원지방법원 안양지원 2013. 10. 24. 선고 2012가합6405 판결

채권양도 계약에 관한 내용증명이 먼저 도달하였으므로 대한민국은 압류채권을 주장할 수 없음[국패]

Title

Since the content certification of a contract for the assignment of claims reaches the first place, the Republic of Korea shall not claim the seizure claim.

Summary

The plaintiff's first and second assignment of claims are all proved by the contents of the first and second assignment of claims, which first reached BB construction rather than the attachment notice based on the defendant's tax claims. Thus, the defendant's Republic of Korea cannot set up against the plaintiff who already acquired the claims due to the above attachment.

Cases

2012 Confirmation of claims for withdrawal of deposit money 6405

Plaintiff

LAA

Defendant

As shown in the attached list of the defendant.

Conclusion of Pleadings

October 10, 2013

Imposition of Judgment

October 24, 2013

Text

1. On July 12, 2012, it is confirmed that the right to claim the payment of deposit money from the OOO members deposited by Suwon District Court No. 1274 in gold No. 1274 was the Plaintiff among the OO members.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

Reasons

1. Facts of recognition;

A. On July 3, 2011, the Plaintiff, who operates the business, entered into a contract under which the Plaintiff is assigned the OOO of the claim for construction payment (hereinafter referred to as “the first assignment of the claim for construction payment”) under the contract for production of the coal located within the B Mining Co., Ltd. (hereinafter referred to as “BB construction”) from the Defendant DD Construction (hereinafter referred to as “Defendant DD Construction”) for BB construction (hereinafter referred to as “BB construction”). Article 2 of the first assignment of the contract provides that Defendant DD Construction delegates the Plaintiff with the right to notify the transfer of the claim.

B. On April 2, 2012, the Plaintiff requested the instant construction to Defendant DD Construction from “B Construction” to “BB Construction” to the address of the 3rd floor BB BB Construction Construction Co., Ltd. at OO, OO, 623 OOOOO, and the 1st floor BB Construction Co., Ltd. at the site of BB Lighting, and requested the Plaintiff (CCENG) to manufacture necessary materials for the Defendant DD Construction. (b) In connection with the settlement of the price, the Plaintiff sent the documents prepared between Defendant DD Construction and the Plaintiff, referring to the BB Construction and the Plaintiff’s review of the BB Construction. (China) ABB Construction thickness, which proves that the Plaintiff received the 1st floor CB Construction Co., Ltd. as soon as possible by dealing with the grievances of low time and received the 1st floor CB Construction Co., Ltd. at the time of delivery (hereinafter referred to as “CBP”) at the time of delivery to the Plaintiff.

C. On April 3, 2012, the Plaintiff entered into a contract under which the KRW OO of the instant construction cost claim is transferred from Defendant DD Construction (hereinafter “the second assignment contract”). Article 2 of the second assignment contract also delegates Defendant DD Construction’s power to notify the Plaintiff of the assignment of claims to Defendant DD Construction 2.

D. On April 5, 2012, the Plaintiff received the 3rd OB construction site of OB construction 23 OB construction 223 OO center at O, the 3rd BB construction 203rd BB construction 20, the vice-director at the site as the receiver on April 10, 2012, and the 3rd payment of the progress payment paid to the Plaintiff on the priority basis of the documents and the bonds transfer and takeover contract. On April 4, 2012, the Plaintiff received the 20th payment of the 20th payment of the 4th payment of the 2th payment of the 4th payment of the 4th payment of the 4th payment of the 4th payment of the 4th payment of the 4th payment of the 4th payment of the 20th payment of the 4th payment of the 4th payment of the 4th payment of the 4th payment of the 4th payment of the 4th payment of the 4th payment of the D construction.

E. The remaining Defendants, except for Defendant DD construction, provisionally seized or acquired the instant claim for construction cost as indicated below, and the original copy of the decision of transfer or provisional seizure reaches BB construction on each of the dates indicated below.

No.

Types

LLL Co.

OOO

April 25, 2012

Defendant

Kim NN

OOO

May 2, 2012

Provisional Attachment

Defendant

PPPP

OOO

May 7, 2012

Provisional Attachment

Defendant

주식회사 QQQ

OOO

May 7, 2012

Provisional Attachment

Defendant

Park RR

OOO

May 7, 2012

Provisional Attachment

Defendant

OOO

May 9, 2012 (after the decision of correction is served on June 1, 2012)

Provisional Attachment

OOO

May 22, 2012

Provisional Attachment

정■■

OOO

July 10, 2012

F. BB Construction is concurrent with claims, provisional seizure, assignment of claims, etc., and the Plaintiff’s legitimacy of assignment of claims is doubtful. On July 12, 2012, the court deposited OOOO's won among the instant construction payment claims (hereinafter referred to as “the instant deposit”) under the FOO274, stating that the deposited person is “Defendant DD Construction, Plaintiff, or Defendant KimN or Defendant KimW,” the statutory provision as “the latter part of Article 487 of the Civil Act, and Article 248(1) of the Civil Execution Act” as “Article 1274 of the Civil Execution Act.

[Reasons for Recognition]

○ 피고 DD건설, 이KK, 주식회사 PPP, 주식회사 QQQ, 박RR, 오SS, 임TT, 주식회사 UUU, 정YY, 주식회사 ZZ, 주식회사 ◇◇, 임◆◆, 이□□ : 불출석 자백간주(민사소송법 제150조 제3항, 제1항)

○ The remaining Defendants: The entries in Gap evidence 1-1 to 3, Gap evidence 2-1 to 4, Gap evidence 3-1 to 4, Gap evidence 4, 5, Gap evidence 21-1, Gap evidence 22 through 26, and the purport of the whole pleadings.

2. Determination

A. Whether notification of assignment of claims is lawful

피고 김WW, 정■■는, 제1, 2차 내용증명은 원고가 자재대금의 지급을 요청하는 것에 지나지 않아 채권양도와 관련한 통지로 볼 수 없고, 그 각 내용증명의 수신인도'BBB 광양제철소 사일로 현장의 조FF 차장'으로 되어 있어 채무자인 BBB건설에 이를 통지한 것으로 볼 수 없어, 제1, 2차 채권양도 통지가 부적법하여 효력이 없다는 취지로 주장하므로, 제1, 2차 채권양도 통지의 적법성을 살펴본다.

According to the above facts, although the plaintiff stated the purport that "the plaintiff paid the price directly by sending the first and second contents certification," it shall be deemed that the plaintiff received the amount equivalent to the subcontract price by taking over the above defendant's claim against the BB Construction, which is the main contractor, between the defendant DD Construction, as the main contractor, and therefore, the payment of the debt acquisition amount is considered to have been explained as having the meaning of the direct payment of the subcontract price, and as long as the whole purport of each content certification is transferred, and the whole purport of each content certification is changed in return for the transfer of the money, and as such, the first and second contents certification may be deemed to be the notification of the transfer of the claim.

In addition, the notification of the assignment of claims is satisfied by recognizing that even at a place that does not fall under the obligor’s address, residence, place of business, or office, as stipulated in the provisions of the Civil Procedure Act, the obligor was placed in an objective state through which the content of the notification can be known by social norms (see, e.g., Supreme Court Decision 2010Da57, Apr. 15, 2010). According to the above facts of recognition, the recipient of the first and second content certification is “BB Construction’s assistanceF Vice Minister located at the site of BBB file,” but the FF Vice Minister appears to be an employee of BB Construction in relation to the above site or at least BBB Construction related to the above site, and each of the above contents certification was directly received by the FF Vice Minister Kim EE, and it is reasonable to deem that the first and second content certification reached the obligor’s concept or reached the objective concept of BB construction.

Furthermore, according to the above facts, it is reasonable to view that the Plaintiff was aware or could have known that the Plaintiff, the assignee, was notified of the assignment of claims as the agent of Defendant DD Construction, in light of the contents of the first and second assignment of claims and various circumstances surrounding the notification of the assignment of claims, such as the content of the first and second assignment of claims attached to Defendant DD Construction, and that the Plaintiff knew or could have known of the other party. Thus, the first and second content certification is valid as the notification of the first and second assignment of claims (see, e.g., Supreme Court Decision 2003Da43490, Feb. 13, 2004).

Therefore, the content certification of the first and second claims can be seen as legitimate notification of the transfer of claims.

B. The heating relationship between the assignment of the first and second assignment of claims and the provisional seizure, etc. of the Defendants

In a case where the court determines the heat between the person who executed provisional seizure or attachment order with respect to the same claim as the assignee of the claim, the court shall decide the heat thereof by giving notice of the assignment of claim with a fixed date and by making a provisional seizure or attachment order after the arrival to the third obligor (in the case of the transfer of claim, by the debtor), (see, e.g., Supreme Court en banc Decision 93Da24223, Apr. 26, 1994). Furthermore, in the seizure of the claim, where the target claim exceeds the amount of the execution claim, the seizure may be made even in cases where the target claim exceeds the amount of the execution claim. The effect of the seizure is limited to all the target claim unless there are special circumstances, such as the execution creditor limited the amount of the target claim to be seized (see, e.g., Supreme Court Decision 91Da12233, Oct. 11, 191); where the execution creditor has filed an application for seizure only for part of the target claim, within the extent of the execution claim amount, the seizure becomes effective (see, etc.).

According to the above facts, prior to the notification of the first and second assignment of claims, the provisional attachment of the defendant NamG, HG, H Engineering, HII, SJE, JJE and EK, all of the claims for the construction of this case, the scope of claims effective by each provisional attachment is a provisional attachment of some of the claims for the construction of this case, and the total scope of claims covered by each provisional attachment is OOO + OOOO + OOOO +OOO +OOOO +OOOOO + among the claims for the construction of this case (the construction of this case of the construction of this case), each provisional attachment does not have effect on the remainder of OOO-O-O-O-O-O-O-O-O-O-O-O) among the claims for the construction of this case (the construction of this case of this case of the construction payment of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of the provisional attachment.

Therefore, barring special circumstances, the Plaintiff may exercise the right to claim for the payment of deposit money against the OOE out of the instant deposit.

C. Determination as to the defendants' assertion

1) 피고 남GG, 주식회사 LLL, 백MM, 유XX, 정■■는, 원고와 피고 DD건설 사이의 제1, 2차 채권양도계약은 채무초과상태에 있던 피고 DD건설이 다른 채권자들을 해할 목적으로 체결한 것으로서 사해행위에 해당하여 취소되어야 하고, 그 원상회복으로 이 사건 공사대금채권 중 원고가 양수받은 부분은 피고 DD건설에 반환되어야 한다고 주장한다.

However, the revocation of a fraudulent act can only be claimed by means of filing a lawsuit with the court, and cannot be asserted by means of an attack and defense in the lawsuit (Supreme Court Decision 95Da4859, 48605 delivered on March 13, 1998). This part of the above Defendants’ assertion is without merit in itself.

2) Defendant Republic of Korea asserts to the effect that, in cases where seizure due to tax and assignment of claims competes with each other pursuant to Article 35 of the Framework Act on National Taxes, the statutory due date of the tax and the due date of the notification of the transfer of claims should be determined first after the date of the notification of the tax. Defendant DD Construction taxes and the statutory due date, all of which arrive earlier than the notification date of the Plaintiff’s first and second assignment of claims, Defendant Republic of Korea’s tax claims should prevail over

Article 35(1)3 of the Framework Act on National Taxes provides that "national taxes, additional dues, or disposition fees for arrears shall be collected in preference to other public imposts or other claims: Provided, That when any property, the fact that the establishment of a right of lease on a deposit basis, pledge, or mortgage has been registered before the statutory due date, is sold, which is proved as prescribed by Presidential Decree, the same shall not apply to claims secured by the right of lease on a deposit basis, pledge, or mortgage, where national taxes or additional dues (excluding national taxes and additional dues imposed on such property) are collected from the proceeds of sale." This applies to cases where a seizure based on a right of lease on a claim is made based on a security and a right of priority of a claim. Thus, in cases where a debtor's claim against a third party obligor is seized based on the same claim after the notice of transfer with a fixed due date has been given to a third party, barring any circumstances such as cancellation or invalidation of the above transfer, it is reasonable to deem that the priority of taxation claims between the security rights and the secured claims subject to public notice cannot be determined by the third party prior notice date of the transfer date.

Therefore, as seen earlier in the instant case, the Plaintiff’s 1 and 2 content certification of the Plaintiff’s 1 and 2 assignment contract reached BB construction before the attachment notice based on the Defendant’s tax claim, and the Defendant Republic of Korea cannot set up against the Plaintiff who already acquired the claim due to the above attachment.

Therefore, Defendant Republic of Korea’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

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