2015Da65875 (principal lawsuit) Damages

2015Da65882 (Counterclaim) Contract Performance Bond, etc.

Reference Construction Co., Ltd.

person

Promotion Enterprises Corporation

Seoul High Court Decision 2014Na31532 (Main Office), 2014Na31549 decided October 1, 2015

(Counterclaim) Judgment

July 11, 2017

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the main lawsuit shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Where there exists a seizure and collection order, only the claimant may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a lawsuit for performance against the seized claim. The above matters concerning the standing to be a party are related to the requirements of litigation, and the court shall investigate and determine it ex officio. Although the parties concerned did not assert it by the time the arguments are closed at the court of final appeal, the court may newly assert and prove it (see, e.g., Supreme Court Decision 2007Da60417, Sept. 25, 2008).

Meanwhile, in a case where the third party obligor indicated the amount to be paid to the obligor as the seized claim according to the conclusion of the judgment, the claim under the substantive law, which is the subject matter of the relevant lawsuit, constitutes a seized claim under the seizure and collection order (see, e.g., Supreme Court Decision 2010Da40444, Apr. 28, 201).

2. According to the reasoning of the lower judgment, the lower court determined that the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) was liable to compensate the Plaintiff for the damages incurred to the Plaintiff due to the Defendant’s nonperformance of obligation, and partly accepted the Plaintiff’s claim on the principal lawsuit.

However, according to the records, as to the amount of the damage claim that the plaintiff is to receive from the defendant among the damage claim that the plaintiff is to receive from the defendant, the Seoul Western District Court 2013Gahap4401 (including its appellate court and the case of conciliation and reconciliation), which is the case of the first instance court of this lawsuit, the plaintiff received from the defendant, as to the amount of the damage claim that the plaintiff is to receive until that time, the amount of the damage claim that the plaintiff is to receive from the defendant, the amount of the damage claim was to be paid by the defendant, which was subject to the seizure and collection order of the claim amounting to 92,118,546 of the amount of the claim on December 9, 2013, and the Korea Communications Corporation received the seizure and collection order of the claim amounting to 42,724,119 of the amount of the claim on December 10, 2013.

Examining the above facts in light of the legal principles as seen earlier, the Plaintiff lost the standing to institute a performance suit against the seized claim by delivering each of the above claims seizure and collection order to the Defendant, who is the garnishee. Therefore, the lower court re-determines the scope of the Plaintiff’s standing to institute a performance suit against the Defendant seeking payment on the principal claim.

need.

Therefore, the judgment of the court below, which was made on the premise that the plaintiff has the standing to bring a performance lawsuit against the defendants as to the whole of the above damage claim, cannot be maintained as it is, and the allegation in the grounds of appeal

3. Therefore, without examining the Defendant’s remaining grounds of appeal, the part against the Defendant as to the principal lawsuit among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik, Counsel for the defendant

Justices Park Young-young

Chief Justice Kim Jong-il