Plaintiff (Attorney Lee Dong-soo et al., Counsel for plaintiff-appellee)

Korea Land Trust Co., Ltd. (Attorney Cho Jong-hwan, Counsel for defendant-appellant)

October 10, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 50 million won with 5% interest per annum from September 13, 2004 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to the entries in Gap evidence 2 and Eul evidence 3:

A. On September 8, 2004, the Plaintiff filed an application with the Seoul Central District Court for the seizure and assignment order of claims against Nonparty 1’s Defendant on the basis of the authentic copy of a promissory note with executory power of No. 2260 in Seoul General Law Firm No. 2001, and the third obligor filed an application with the notary public for the seizure and assignment order of claims against Nonparty 1’s Defendant on the basis of the authentic copy of a promissory note with executory power of No. 2260 in Seoul General Law Firm No. 2001, and the attachment and assignment order of claims (hereinafter “instant assignment order”). As a result, the assignment order of claims was issued on September 8, 2004.

B. The instant assignment order was served on the Defendant on September 13, 2004, and was finalized on October 1, 2004.

2. The parties' arguments and the judgment on them

A. The parties' assertion

With respect to the Plaintiff’s claim against the Defendant for the payment of the full amount of KRW 500,00,000 and damages for delay thereof, the Defendant asserts that the instant assignment order is null and void as it was issued in competition because the Plaintiff sought the payment of the full amount, even though the Plaintiff’s claim was a claim for which the due date is not due, or two orders for seizure and provisional seizure by other creditors were issued at the time when the assignment order of this case was served to the Defendant.

(b) Fact of recognition;

The following facts shall not be disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings as stated in the evidence No. 1-3, evidence No. 3-1, 2, and evidence No. 4:

(1) Conclusion of a real estate security trust contract

The respective real estate listed in the attached list of real estate (if each of the above real estate is mentioned, each of the above real estate was originally owned by Nonparty 1 and 2. Nonparty 1 and 2 were loaned KRW 13,00,000 from the foreign exchange bank on January 8, 2003, and the Defendant entered into a real estate security trust agreement with the foreign exchange bank as priority beneficiary, and completed the registration of transfer of ownership in the Defendant’s name on the same day.

(2) Conclusion and cancellation of a contract on each real property of this case

(A) After that, as Nonparty 1 and 2, etc. lose the benefit of time by delaying the above principal and interest of loan, the Defendant had conducted a public auction for realization of each of the instant real estate at the request of the foreign exchange bank, a first beneficiary, and the purchaser of each of the instant real estate in the public auction procedure followed the process of cancelling the contract several times as seen below by delaying the payment of the purchase price.

(B) On June 9, 2004, the Defendant concluded a sales contract to sell each of the instant real estate to Nonparty 3 for KRW 6,526,00,000. However, upon delay in the payment of intermediate payment and remainder, the Defendant notified Nonparty 3 on August 3, 2004 to the effect that “the contract is automatically rescinded without any specific notice where the intermediate payment is not paid by August 9, 2004.” Nonparty 3 paid the remainder amount, interest, etc. to the Defendant around 11:59 on September 15, 2004. The Defendant was failed to re-auction each of the instant real estate on September 14, 200, and returned the remainder of KRW 652,600 to Nonparty 3 on September 23, 200, after deducting the remainder of the sales amount, which was confiscated by Nonparty 10,000,000.

(C) While the dispute with Nonparty 3 continues, the Defendant announced the bidding on each of the instant real estate on January 20, 2005. On January 21, 2005, the Defendant concluded a sales contract to sell each of the instant real estate to Nonparty 6 Co., Ltd. (hereinafter “the first sales contract”) for KRW 6,526,00,000 for the price. However, upon delay in the payment of the price, the Defendant notified Nonparty 6 Co., Ltd. to the effect that “if the intermediate payment is not made by April 21, 2005, the contract shall be rescinded without any specific notice.” The Defendant did not pay the intermediate payment by the said payment deadline, and the Defendant confiscated the remainder of KRW 620,000,000, excluding the down payment amount of KRW 652,600,000,000 for the said payment period.

(D) On June 1, 2005, the Defendant again announced the bidding with the same contents as before. Nonparty 6 Co., Ltd. was re-designated as a negotiated contract in the name of the KO○ Association of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the KO branch of the branch of the KO branch of the KO branch of the KO branch of the KO branch.

(3) The filing and the progress of the lawsuit by Nonparty 6 corporation

(A) The non-party 6 corporation filed a lawsuit against the defendant demanding the registration of ownership transfer to the Seoul Central District Court 2006Gahap48507 (Seoul Central District Court 2006) (the claim was amended to seek the return of the down payment after seeking the implementation of the procedure for the registration of ownership transfer to each of the instant real estate). The sales contract between the defendant and the non-party 3 still remains valid after the non-party 3 paid the purchase price prior to the successful bid through re-auction. Accordingly, the first sales contract and the second sales contract constitute double sales. By agreement between the non-party 3 and the non-party 3 on the completion of the registration of ownership transfer to each of the instant real estate with the non-party 3 or with the religious organization represented by the non-party 3, the defendant sought payment of KRW 1,240,000,000 out of the total amount of the down payment and the first, first and second sales contract and the second sales contract were lawfully cancelled within the reasonable scope of the penalty for breach of duty.

(B) On October 10, 2006, the above court dismissed the primary claim of Non-Party 6 Company on the grounds that there is no evidence to prove that the Defendant explicitly expressed his intention of non-performance as double selling of the first and second sales contracts. On the other hand, upon partially accepting the conjunctive claim of Non-Party 6 Company, reduced the sum of KRW 1,240,80,000 for the first and second sales contracts confiscated by the Defendant to KRW 620,40,000 for a total of KRW 50%, and sentenced the Defendant to order the payment of KRW 620,40,000 for a penalty exceeding the above amount and delay damages.

(C) The Defendant appealed to Seoul High Court Decision 2006Na99090 on the part of the preliminary claim that was partially lost among the judgment of the first instance court. On May 4, 2007, the said court concluded the first sale contract between the non-party 6 corporation and the Defendant, but the second sale contract cannot be deemed to have been concluded between the non-party 6 corporation and the Defendant, and on the other hand, the part against the Defendant in the judgment of the first instance on the ground that the penalty agreement at the time of the first sale contract between the non-party 6 corporation and the Defendant cannot be deemed to have been unjustly excessive, was revoked and the decision dismissing the conjunctive claim of the non-party 6 corporation

(D) Although Nonparty 6’s appeal was filed against the above appellate judgment by Supreme Court Decision 2007Da34104, Nonparty 6’s appeal was dismissed on September 20, 2007 (hereinafter “relevant appellate judgment”).

(4) The defendant's lawsuit and the process of lawsuit

(A) In the relevant judgment, the purchaser of the second sales contract is not Nonparty 6 corporation but Nonparty 8 and ○○ Association. The Defendant filed a lawsuit seeking confirmation of existence against Nonparty 8, ○○ Association, and Nonparty 5 (the transferee of the claim for the return of down payment to the Defendant from Nonparty 8 and ○○ Association) in Seoul Central District Court No. 2007Gahap110096, and 620,000,000, which the Defendant confiscated pursuant to the second sales contract, did not exist.

(B) On July 25, 2008, the above court rendered a judgment that the Defendant’s obligation to return the down payment to Nonparty 5, who acquired the claim for the return of the down payment under the second sales contract from Nonparty 8 and ○○ Association, shall not exceed KRW 310,000,000, on the ground that the estimated amount of damages under the second sales contract would be unduly excessive. As such, the Defendant’s obligation to return the down payment to Nonparty 5, who acquired the claim for the return of the down payment under the second sales contract, shall not exceed KRW 310,000,000.

(C) The defendant filed an appeal with Seoul High Court No. 2008Na82270 against the above judgment of the first instance court and is currently pending in the appellate court.

(5) Final sale of each real estate of this case

On the other hand, on July 18, 2006, according to an agreement that the defendant completed the registration of ownership transfer with respect to each of the real estate of this case to a person designated by Nonparty 3 or to a religious organization represented by Nonparty 3, the defendant sold each of the real estate listed in paragraph 1 of the attached Table to Nonparty 9 and completed the registration of ownership transfer to the 6,398,736,830 won, respectively, and completed the registration of ownership transfer with respect to each of the real estate listed in paragraphs 2 and 3 of the attached Table to 1,201,263,170 won.

C. Determination

The amount of money until the plaintiff's claim amount of KRW 500,00,000,00 among the claim amount of the claim against the non-party 1 among the claim for payment of dividends against the defendant can be calculated by deducting the defendant's conversion fees and various expenses paid for the sale of real estate and the dividend of the beneficiary from the revenue from the sale of each real estate of this case (the sum of the amount confiscated as penalty from the purchaser as seen above and the financial interest thereon, etc. as seen in the sale price of each real estate of this case). According to the above facts of recognition, the defendant finally sold each of the real estate of this case to the non-party 9 and the Madician Supervisory Association on July 18, 2006 and received the sales price, but the defendant continued to file a lawsuit over the return of down payment amount of KRW 620,00,000,000, which was confiscated by the defendant from the non-party 8 and ○○ Association on July 18, 2006.

Nevertheless, as the Plaintiff is seeking the implementation of the entire amount based on the assignment order of this case, the Plaintiff’s assertion on a different premise is without merit (On the other hand, even if the Plaintiff’s claim of this case is included in the intent of seeking future performance, there is no evidence to deem that there is a circumstance that the Defendant could not expect voluntary performance when the due date comes, such as disputing the existence or scope of the entire amount of the obligation based on the assignment order of this case).

3. Conclusion

Therefore, without having to examine the defendant's assertion that the assignment order of this case was issued under the concurrent seizure and null and void, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

【Omission of Real Estate List】

Judges Kim Tae-tae (Presiding Judge)