The validity of a transfer of the entire claim to the entire creditor under an assignment order established based on the ground of the invalidity of a juristic act cannot be denied.

In this case, there is no proof of the Plaintiff’s assertion as to the circumstance that the enforcement procedure based on the instant notarial deed was used as a means of anti-social legal act.

Daejeon District Court 2015Kahap104989

Economic Zone

Foreign Countries of the Republic of Korea 19

2016.05.25

2016.07.20

1. Basic facts

A. Contract agreement between AA and the Non-Party Corporation

On December 21, 2012, the Daejeon National Land and Housing Corporation (hereinafter referred to as the "Korea Land and Housing Corporation") (hereinafter referred to as the "Korea Land and Housing Corporation") set the price as an OO for the 3B-1BL Apartment Project (hereinafter referred to as the "1BL Landscape Project") on December 21, 2012 at AAA Co., Ltd. (hereinafter referred to as the "AAA") and awarded the contract (hereinafter referred to as the "the contract of this case"), regardless of whether it is before or after the mutual change. The price has been changed to the OO.

B. Claim attachment and assignment order, etc. by Defendant BB

(1) On April 30, 2012, AA borrowed 'A' from April 25, 2012 to Defendant BB (the trade name before the alteration is 'O construction of a stock company'; hereinafter 'Defendant BB') as the due date for payment on April 25, 2012, the AA borrowed 'A' from Defendant BBB on May 3, 2012. If AA fails to perform its obligation, a notary public who received compulsory execution shall be informed of the absence of objection even if he/she is immediately subject to compulsory execution, the AA made an authentic deed of monetary loan loan contract No.OOO No. 20 in 2012 (hereinafter 'the No. 3'), and Defendant BB received an assignment order within the time limit of KRW 201,200,000 from the Daejeon District Court Order No. 217148, Dec. 21, 2012.

3) Meanwhile, on December 18, 2013, Defendant BB transferred the total amount of the corporate tax and value-added tax to Defendant Republic of Korea up to the time when BB bears to Defendant Republic of Korea out of the total amount of the instant assignment order based on the instant assignment order.

C. Seizure of Defendant Republic of Korea

On January 23, 2013, the Defendant Republic of Korea (Jurisdiction: Daejeon Tax Office, the first Seo-gu Head of Seo-gu Tax Office was in charge of the tax affairs of AA, but thereafter the competent authority was changed to the Daejeon Tax Office) seized OO members among the claims for construction cost, based on corporate tax, wage and salary tax, value-added tax, which the Defendant Republic of Korea held against AA, against the non-party corporation. The above notification of attachment was served on the non-party corporation, the garnishee on January 24, 2013.

D. The plaintiff's seizure and collection order

1) The Plaintiff filed a lawsuit against AA against Daejeon District Court 2010Gahap9690. On May 3, 2011, the Daejeon District Court rendered a decision in lieu of conciliation that “AA shall pay the Plaintiff an amount of KRW KRW 00 million up to August 15, 201, but at the time of neglect, payment shall be made by adding interest of KRW 10 per annum from August 16, 201,” and the said decision was finalized because the Plaintiff and AA did not raise any objection.

2) On February 18, 2013, the Plaintiff filed a seizure and collection order with the Daejeon District Court 2013TT 2290 (AA), with the title of execution, regarding the OO of the claim for construction cost under the instant contract, which was held by the Daejeon District Court 2013TT 2290 against the non-party corporation, and received a decision of the above court to seize and collect the claim. The said decision was served on the non-party corporation, a garnishee, on February 21, 2013.

E. The Defendant’s wage creditors’ seizure and collection order

1) The remaining Defendants except Defendant BB, Korea, and CCC (hereinafter referred to as “Defendant wage creditors”) filed an application for payment order against AA with the Daejeon District Court 2013 tea6200 (hereinafter referred to as the Daejeon District Court) on the basis of DD as the designated parties. On July 3, 2013, the said court issued AA’s payment order with the content that ordered the Defendant’s wage creditors to pay the amount of money listed in attached Table 1-B(b) and damages for delay.

2) Although AA did not raise an objection, the above payment order was finalized at that time. Defendant wage creditors were appointed as the designated party, and the original copy of the above payment order was the title of execution, and the Daejeon District Court issued a seizure and collection order with respect to the claim for the construction cost under the instant contract that AA owns against Nonparty Corporation, and received a decision from the above court on June 13, 2014. The above decision was served on Nonparty Corporation, the garnishee, on June 16, 2014.

F. Deposit for the execution of the Nonparty Corporation

1) From April 28, 2014 to April 29, 2014, the Non-Party Corporation performed a claim confirmation inspection on the 1BL landscaping construction and settled the construction cost of AAA as OO.

2) On June 20, 2014, the Non-Party Corporation deposited KRW 647,715,023 remaining after deducting KRW 82,930,00 of direct payments for delay payments for Non-Party Corporation and KRW 38,45,00,00 from KRW 3455 of the Daejeon District Court (hereinafter “the deposit of this case”) under Article 248(1) of the Civil Execution Act, on the grounds that the seizure, provisional seizure, etc. by creditors of AA including the Plaintiff, Defendant BB, Defendant Republic of Korea, and DD with respect to the payment for the construction work that the Non-Party Corporation shall pay to AA, pursuant to Article 248(1) of the Civil Execution Act.

3) On June 20, 2014, the deposit date of the instant case, the Nonparty Corporation reported the grounds for deposit under Article 248(4) of the Civil Execution Act to the Daejeon District Court. Accordingly, the Daejeon District Court 2014Ma816 (hereinafter “instant dividend procedure”) commenced the distribution procedure.

G. Provisional seizure against Defendant CCC’s claim for payment of deposit money

1) On December 2, 2011, Defendant CCC (hereinafter “Defendant CCC”) entered into a credit guarantee agreement with Defendant BB to secure the principal and interest of a loan from an enterprise bank, and Defendant BB entered into a credit guarantee agreement with OO in order to secure the principal and interest of a loan from an enterprise bank.

2) Defendant BB obtained a credit guarantee certificate from Defendant CCC and borrowed KRW 50,000,000 from an enterprise bank on December 7, 2011. Defendant BB lost the benefit of time on September 25, 2014, and Defendant CCC subrogated for the OCO to the OCC on March 12, 2015.

3) Defendant CCC, as the Daejeon District Court 2015Kadan50435, filed an application for provisional seizure of claims against OOB regarding the instant claim for payment of the deposit money held by Defendant BB against the Republic of Korea, and received a decision of provisional seizure of claims from the said court on March 18, 2015.

4) After that, Defendant CCC filed a lawsuit against BB, etc. for the claim for reimbursement against the Daejeon District Court 2015 teas 5885. On April 3, 2015, the above court issued a payment order to Defendant BB, stating that it would pay OO and its delay damages to Defendant CCC. The above payment order became final and conclusive around that time.

(g) Preparation of a distribution schedule and the plaintiff's objection to the distribution;

1) On July 28, 2015, the Daejeon District Court prepared a distribution schedule with the content that the OOO of the amount to be distributed in the instant distribution procedure as follows (hereinafter “instant distribution schedule”).

2) The Plaintiff appeared on the aforementioned date of distribution, and raised an objection to the entire amount of distribution to the Defendants among the instant distribution schedule, and filed the instant lawsuit on August 4, 2015.

[Reasons for Recognition]

○ Defendant BB, Korea, CCC, andOO: The absence of dispute, Gap evidence 2 through 4 (including numbers; hereinafter the same shall apply), Gap evidence 8, 9, 14, Eul evidence 1, 2, 4, 5, Eul evidence 1 through 3, and the purport of the whole pleadings and arguments.

○ The remaining Defendants: Confession (Article 150(3) and (1) of the Civil Procedure Act)

2. The plaintiff's assertion

For the following reasons, the Plaintiff asserts that the amount distributed to the Defendants among the instant distribution schedule should be deleted, and that the deleted amount should be distributed to the Plaintiff.

(a) Defendant BB, Korea, and CCC;

1) Defendant BB received the instant order on the basis of the instant notarial deed. However, even though the instant notarial deed does not actually bear the obligation to Defendant BB, Defendant BB in collusion and falsely prepares it. Therefore, Defendant BB did not own the claim to AA, and the instant assignment order is invalid as it is based on false claims.

2) Meanwhile, Defendant Republic of Korea and CCC acquired, or provisionally seized, a claim for full payment against Nonparty BB’s non-party to the instant assignment order under the instant assignment order. As long as the instant assignment order has no validity, Defendant Republic of Korea and CCC did not have the right to receive dividends in the instant distribution procedure.

B. Defendant Wage Creditor

1) The Defendant’s wage creditors asserted that they were employed by AA and were paid dividends in the instant dividend procedure by recognizing their status as wage creditors. However, the Defendant’s wage creditors cannot at all be seen as having worked at any construction site.

2) Even if Defendant wage creditors were to have worked at the construction site of OOyangwon, which was contracted by a social welfare foundation AA from the OO welfare foundation (hereinafter “OO welfare foundation”), the Defendant wage creditors’ claim for wages against AA was false claims or extinguished by repayment prior to the date of distribution of the instant case. Defendant wage creditors did not have the right to receive dividends in the instant distribution procedure.

3. Claim against Defendant BB, Korea, andCC

A. Relevant legal principles

In a compulsory execution procedure against a monetary claim with an execution title based on an effective commission of a debtor or his/her agent for the preparation and an expression of intent of recognition of execution and a monetary claim with an execution title, even if there exists grounds for invalidation in a juristic act, which is the basis of a claim indicated in the said notarial deed, if the compulsory execution procedure continues without lawful revocation and suspension through a lawsuit of objection against a claim, and the seizure and assignment order of a claim becomes legally final and conclusive, barring special circumstances, such as that the compulsory execution procedure is used as a means of anti-social juristic act, the validity of the entire claim transfer to the whole creditor pursuant to a final and conclusive assignment order based on the grounds of the invalidation of such juristic act cannot be denied (see Supreme Court Decision 2004Da7024, Apr. 15, 2005).

B. Determination

1) Even if the judgment of the assignment order of this case was null and void as the plaintiff's assertion, the facts that the AB prepared the instant notarial deed to Defendant BB on April 30, 2012, and Defendant BB made an attachment and assignment order as to KRW 300 million out of the construction price of the claim based on the instant contract held by AA as the title of the execution of the instant notarial deed, as Daejeon District Court 2012TTTT 17148, which is the title of the execution of the instant notarial deed, and received the decision of the assignment order of this case on December 17, 2012. The facts that the decision of the assignment order of this case became final and conclusive on February 23, 2013 are without any assertion and proof as to the fact that the compulsory execution procedure based on the instant notarial deed was used as a means of anti-social legal act.

2) On December 21, 2012, the assignment order of this case was lawfully transferred to Defendant BB on the part of KRW 300 million among the claim for construction cost based on the instant contract that AA had against Nonparty Corporation. On the contrary, the Plaintiff’s assertion against Defendant Republic of Korea and CCC premised on the invalidity of the assignment order of this case is without merit.

4. Claim against the Defendant’s wage creditors;

A. As to Defendant MaO, HanO, MaO, MaO, MaO, MaO, KimO, KimO, KimO, MaO, MaO, MaO, MaO, MaO, and MaO

(i)the indication of the claim

Since the above Defendants did not hold wage claims against AA, they do not have the right to receive dividends in the instant distribution procedure.

2) Applicable provisions;

A) Defendant MaO, HanO, MaO, MaO, MaO, MaO, MaO, KimO, KimO, MaO, MaO, MaO, HaO, HaO, MaO, and MaO: Judgment on deemed confession (Article 208(3)2 of the Civil Procedure Act)

B) Defendant OOO: Judgment by public notice (Article 208(3)3 of the Civil Procedure Act)

B. As to Defendant SongO, HaO, and MaO

1) The Plaintiffs asserted that the aforementioned Defendants’ wage claims against AA were false, or that the said Defendants received full repayment of their wage claims prior to the instant distribution procedure, and the said Defendants were not clearly dissatisfied with them, and thus, they were deemed to have led to confession.

2) Therefore, the Defendants did not have the right to receive dividends in the instant distribution procedure.

C. The plaintiff's claim amount

1) A lawsuit of demurrer against distribution is sought for the modification of a distribution schedule or the preparation of a new distribution schedule in order to reduce the amount distributed to himself/herself by reducing the amount distributed to a person entered in the distribution schedule. As such, the Plaintiff is not sufficient to assert and prove that there is no claim of the Defendant in order to win a lawsuit of demurrer against distribution, and the Plaintiff has the right to receive dividends from the Defendant (see Supreme Court Decision 2010Da42259, Jul. 12, 2012). Meanwhile, even if a creditor demand a partial distribution until the period for demand for distribution, if only a part of the claim is requested for a distribution, the non-distribution claim may not be added or expanded after the period for demand for distribution (see Supreme Court Decision 2011Da44160, May 10, 2012).

2) The Plaintiff filed the instant lawsuit by asserting that the amount of the claim against AA is an OO member. However, Daejeon District Court Decision 2010Kahap9690, Daejeon District Court 2010, the original copy of the protocol of decision in lieu of the conciliation of the loan claim case, which was rendered on February 18, 2013, was decided to seize and collect the claim (Seoul District Court 2013TTTT290), and the fact that the amount of the decision on the above collection order was the cause of OOO. As seen earlier, there is no evidence to prove that the Plaintiff received a demand for distribution of the claim other than the above amount of the claim prior to the report on the reasons for the deposit of the non-party construction, which was the completion date to demand

3) Therefore, the Plaintiff’s claim amount becomes an OO member, which is the claim amount of the above seizure and collection order.

D. Sub-determination

The Defendant’s wage creditors do not have the right to receive dividends in the instant distribution procedure. Of the instant distribution schedule, the amount of dividends to the Defendant’s wage creditors should be entirely deleted. Since it is apparent in the calculation that the sum of the deleted amount falls short of the Plaintiff’s claim amount, the deleted amount should be distributed to the Plaintiff.

5. Conclusion

The plaintiff's claim against the defendant Republic of Korea and CCC is dismissed for each reason, and the claim against the defendant's wage holders is justified, and it is so decided as per Disposition.