Seoul High Court Decision 200Na1478 delivered on August 1, 200

[Defendant-Appellant] 1 and 2 others (Attorney Song-soo et al., Counsel for defendant-appellant)

Mar. 19, 2003

Chuncheon District Court Decision 2000Kahap560 Delivered on August 23, 2001

1. The judgment of the court below is revoked.

2. From among the distribution schedule prepared on March 29, 200 by the above court with respect to the distribution procedure cases in the Chuncheon District Court 99tagi1843 (2060, 2243, 2515, 2749, 200 other 112, 134, 271 consolidation), it is corrected that the amount of dividends against the plaintiff is KRW 297,468,170, 147,468,170, the amount of dividends against the defendant leok-ray, the amount of dividends against the defendant leok-ray, the amount of dividends of KRW 40 million against the defendant leok-ray, the amount of dividends of KRW 250,000,000 against the defendant Maok-gu, and the amount of dividends of KRW 250,000,000 for the defendant le-style

3. The costs of the lawsuit shall be borne by the Defendants through the first and second trials.

As set forth in the text.

1. Basic facts

The following facts can be acknowledged in full view of the whole purport of the pleadings in the statements in Gap 1 through 4, 6, 12, and Gap 21-1, 2, and 22-1, 2, and 3.

A. On February 14, 1998, when operating an power distribution business under the trade name of "Semulk Kim Young-dong" (the de facto operator, his husband), the Kim Jong-chul concluded a contract for power distribution works (hereinafter "the instant contract for construction works") with the Korea Electric Power Corporation (hereinafter "Korea Electric Power Corporation") under the name of the Corporation, "B to work for 98 Special unit price contract (the area to work)", "the right-hand area, south, East, East, and South, North, part of movable property," "1,820,254,50 won", and the estimated contract amount "1,820,254,50 won", and "the construction period was from February 14, 1998 to December 31, 199." The Plaintiff agreed to modify the license and rights of the instant contract for electrical construction works to all rights and obligations of the Plaintiff as the instant contract for construction works.

B. In order to execute the bond amounting to KRW 400 million based on the authentic copy of the Chuncheon Joint Law Office No. 57 of 1999, document No. 57 of document No. 1999, the defendant Yoon-ok received an order of seizure and assignment of the claim amounting to KRW 400 million out of the claim amount of construction price based on the construction contract of this case against the Chuncheon District Court No. 99Ma188 of Jan. 23, 1999, and the decision was served before January 26, 199, and became final and conclusive around that time.

C. Defendant Kim Jong-ho received on January 23, 1999 the attachment and assignment order of 200 million won out of the claim for the construction price of this case against Chuncheon District Court No. 99Ma189 on January 23, 199 for its execution, which was served on January 26, 199 by a notary public prior to the execution of the Chuncheon Joint Law Office, No. 3847 and 3848 of the 1998, which was executed by the notary public, against Kim Jong-ho. The decision was served on January 26, 199 and became final and conclusive around that time.

D. The defendant Choi Jong-ok received a seizure and collection order of KRW 250,000,000 from the bonds of construction payment against Chuncheon District Court No. 99Ma599, Mar. 17, 1999 for the execution of a claim of KRW 250,000,000, based on the authentic copy of a notarial deed No. 3236, 1998, which was executed by a notary public against Kim Jong-deok, for the execution of such a claim. The original copy of the decision was served before March 18, 1999.

E. On August 4, 1999, the third debtor, served several provisional attachment orders as well as the above seizures of the defendants with respect to the claim for the construction price of this case against Kim Young-deok, the court of 107,695,702,702,000,0000 won as 232,840,920 won as 5714 in 99,0000,0000 won as 633 in 99,000,0000 won as 633 in 99,000,000 won as 107,695,702 won as 723 in 99,60,000,000 won as 20,005,000 won as 20,0005,000 won in 20,000 won in 9,000 won in 25,005,000 won in 196.

F. Around March 29, 200, on the date of distribution of the distribution procedure (hereinafter referred to as the "distribution procedure in this case"), the Chuncheon District Court 99 Taz. 1943 (2060, 2243, 2515, 2749, 200 Taz. 112, 134, 271) (hereinafter referred to as the "the distribution procedure in this case"), which was implemented on March 29, 200 with respect to the above deposit, distributed a distribution schedule of KRW 40 million to Defendant Maz., Defendant Maz., 250,000 to Defendant Maz., Defendant Maz., as the transferee of the claim, the distribution schedule of KRW 40,108,780, and the debtor's surplus of KRW 297,468,170, as the transferee of the claim in this case, was prepared and brought a lawsuit in this case on April 4 of the same year.

2. Determination on this safety defense

(1) The defendants asserted that the plaintiff succeeded to the status of the contractor of the construction in this case against the Kim Jong-deok, and merely did not have standing to sue in a lawsuit of demurrer against distribution in the distribution procedure in this case.

According to the instant distribution schedule, the Plaintiff stated that the remaining amount after the Plaintiff first distributing to the creditors as the debtor was received as the surplus. However, as seen earlier, the Plaintiff did not succeed to the status of Kim Jong-ok as the debtor, but did not receive the Plaintiff’s claim for the construction price before the completion of the construction work in order of the Plaintiff’s succession to the rights and obligations under the instant construction contract from May 20, 199, the agreement between Park Jong-ok and the Defendant Yoon-ok, Kim Jong-ho as of May 31, 199, the agreement between Park Jong-ok and the Defendant Yoon-ok as of May 31, 199, the agreement between Park Jong-nam as of May 31, 199, and the agreement between the Plaintiff and Han-dong as to changing the title of the instant construction contract between the Plaintiff and the Plaintiff to the Plaintiff on June 22, 1999, and the Plaintiff’s claim for the construction price was transferred to the Plaintiff before and after the completion of the construction work in order of its succession to the rights and obligations to the Defendants.

Therefore, in the distribution procedure of this case, the plaintiff holds not the status of debtor against the defendants as to the seizure right holder but the status of simple creditor against the transferee or transferee of the claim equal to the seizure right holder. Thus, the plaintiff has the standing to object to the distribution procedure of this case. Therefore, the defendants' defense is without merit.

(2) Defendant Maok and Kim Ho-ho asserted that the total amount of KRW 600 million that they received as the entire right holder in the instant dividend proceeding was seized and received in entirety without any competition of claims, and that the actual payment deposit was received as one of the execution creditors with the form competition, and thus, it cannot be asserted as a demurrer against distribution on the ground that it was merely a receipt of payment deposit as one of the execution creditors with the form competition.

In a case where the above Defendants simply compare the total amount of the above-mentioned claim (1.6 billion won) deposited by Hanwon, a garnishee, and the total amount of the claim (60 million won) received by the above Defendants, the above Defendants received an order to pay a total amount less than the total amount of claims against the garnishee, Kim Jong-deok. Therefore, each of the above Defendants’ assignment orders issued under the absence of competition of seizure, and each of the above assignment orders was served prior to the issuance of each of the above assignment orders, seems to have been entirely owned by the above Defendants.

However, in light of the following facts and the facts acknowledged by the lower court, the testimony of the lower court, the Defendants, and the Defendants’ respective assignment orders, as seen earlier, deposited KRW 232,840,920 to the Chuncheon District Court on August 4, 1999. In addition, Kim Young-chul and Kim Jong-hee failed to properly proceed with the instant construction works due to the lack of funds for the first patrolman on March 4, 1999. The fact that the construction of this case was resumed on April 199 by acquiring the “Secheon-gun” around 199, while the construction of this case was resumed, the construction of this case was resumed after the Plaintiff succeeded to the status of Kim Jong-deok, and the construction of this case was resumed after the first half of June 1999. Accordingly, since each of the above Defendants’ respective assignment orders was issued, it did not have any effect on the Plaintiff’s assignment order prior to the completion of the construction works as the entire claim against the Defendant’s assignment order prior to the issuance of the above Defendants’ respective assignment order.

Therefore, the above deposit cannot be deemed as a repayment deposit against the above Defendants. In addition, even if the above Defendants received the full payment amount of KRW 600 million as the entire right holder in the distribution procedure of this case, it is merely a receipt of the payment deposit, it is known that there exists no deposit, and thus, it does not bring about the effect of payment. Therefore, the above Defendants’ assertion is without merit.

3. The parties' assertion and judgment

A. The plaintiff's assertion

The Plaintiff is the cause of the instant claim. The Defendants agreed to waive the entire amount of the instant claim and the collection amount to the effect that the Plaintiff acquired the Plaintiff Company and the Defendant gave up the claim for the loan against Kim Jong-deok. As such, the Defendants asserted in the instant distribution procedure that the Defendants received dividends as the full right holder and the collection right holder.

(b) recognised facts;

The following facts may be acknowledged according to the evidence of 11 through 17, A21-1, 2, 3, A23-1, 2, 3, 4, 6, A24-1, 12, 18, 22, 25, A25-1 through 21, A29-1, 2, A30-1, 2, A31-3, A32-4, 5, 6, A33-1-2, 2, 2, B-2, and 8-22-1, 2, B-2, and 3-2, and the testimony of the last Gyeongnam (excluding the part that is not trusted in the rear) of the court below, and evidence of 23-1, A-23, 23-2, and 3-1, 6-2, and 3-1, 6-2, and 3-1, 6-2, and 3-1, and 6-3 of the witness evidence of the court below:

(1) Conclusion of the instant construction contract

In December 1, 1997, Kim Jong-kak, which had been operating an electrical construction company from around 1993 with the trade name, established and operated a separate electrical construction company under the name of his wife Kim Jong-kak, and entered into the instant construction contract with the Han-J in the name of "Secheon Power" and carried out the instant construction work.

(2) The occurrence of loans owed to the Defendants

From October 2, 1998 to December 28, 1998, in order to use the same amount as operating funds, Kim Pung-ho and Kim Pung-ho were to enter into a contract on December 2, 1992 with Defendant Pung-ho, a bond and total amount of KRW 1,916,150,00 on 13 occasions by borrowing KRW 1,916,150,000 in a discount rate or promissory note issued by Defendant Pho-ho and Kim Jong-ho, a bond and total amount of KRW 50,000 in order to secure the above obligation for Defendant Pho-ho and Kim Jong-ho, and to transfer the same amount of money to Defendant Pho-ho to secure the above obligation for Defendant Pho-ho, and Kim Jong-ho and Kim-ho, and to transfer the same amount of money and total amount of money to Defendant Pho-ho to KRW 50,500,000,000,000,000.

(3) Default of Kim Jong-hee

However, on October 25, 1998, Kim Jong-ho was an insolvent financial institution, such as the repayment of the first repayment of the loans, and was unable to fully repay the loans to the Defendants, and the construction of this case was not underway. On December 28, 1998, the Plaintiff was established in order to convert the “Semulative power” into a corporate entity, and Kim Jong-chul was registered as the representative director, and the director was registered as the director. However, on March 5, 1999, he did not complete the work of converting the “Semulative power” into a corporate entity and did not complete the work of converting the “Semulative power” into a corporate entity.

(4) Assignment of the claim against the Defendant’s maximum-type “fire-fighting power”

As to Defendant Lan-type, the most-type, holding claims based on each executory exemplification of the notarial deeds with KRW 250,000,000 and KRW 200,000,000,000 against Defendant Lan-type, in order to secure claims against Defendant Lan-type, Kim Jong-ho, Kim Jong-ho. However, on February 23, 199, both claims of KRW 250,00,00 based on the authentic copy of the notarial deeds with executory power over Kim Jong-ok, and its seizure and collection rights, were transferred to Defendant Lan-type and Kim Ho-ho, and the said Defendants did not object to the execution of Defendant Lan-type, even if they independently executed his or her property, by practically abandoning their claims against his or her Kim-dong.

(5) Attachment and provisional seizure of the defendants' claims for the construction price of this case

As seen earlier, Defendant Papok and Kim Jong-ho did not pay the above loan debt, the claim for the construction payment of this case was made as a claim subject to seizure. On January 23, 1999, among the above claim for the construction payment of KRW 400 million and KRW 200 million, the service was made before the original copy of the decision after receiving a seizure and assignment order of each claim against Defendant Papok and the defendant Kim Ho-ho among the above claim for the construction payment of KRW 200 million, and ② on March 17, 199, it was served before the original copy of the decision after receiving a seizure and collection order as to the claim based on the original copy of the above notarial deed in the name of the defendant Pung-type, which was acquired as above on March 17, 199.

(6) attempt to acquire the “fire-fighting power” of the maximum south of the Republic of Korea

On the other hand, the maximum amount of KRW 170,00,000 for the Kim Jong-k, who had a claim for the material purchase amounting to KRW 170,000,00 for the Kim Jong-k. However, when Kim Jong-k was finally in default, it seems that there was no problem in the operation of the "Seified Power" if only the claim for the defendant Yoon-kok and Kim Jong-ho's Kim Jong-ho was settled, and on April 14, 1999, in order to acquire the "Seified Power", the deposit, house and assets of the "Seified Power" were acquired as security for transfer, the maximum amount of KRW 30,00,000 for the above Defendants, and instead, the above Defendants agreed not to exercise the claim for the collection of KRW 250,000,000,000,000 for the entire amount of the money that they received prior to their seizure and collection.

In accordance with the above agreement, the Choi-nam paid KRW 300 million to Defendant Haok and Kim Ho-ho, and operated the "Semul-electric power" by additionally inserting an amount of money equivalent to KRW 100 million, but on April 26 of the same year, he proposed that he will take over the "Semul-electric power" to the Park Jong-sik, an electrical construction company, which was operated by the International Exclusive Corporation, with the knowledge of the circumstances, such as additional provisional seizure of claims for KRW 300 million out of the claim for the construction payment of this case by Kim Jong-deok, and that he would not know it.

(7) The Agreement dated May 20, 1999 between the Park Hun-Hun and the defendant Maok and Kim Ho-ho (the First Agreement of this case)

As a result of the investigation into the debt relationship between the above Kim Young-gun and the above legal entity Kim Young-chul to take over the plaintiff, Kim Young-chul's 9,000 won of 40,000 won of 20,000 won of 30,000 won of 50,000 won of 30,000 won of 50,000 won of 199,000 won of 50,000 won of 9,000 won of 20,000 won of 9,000 won of 9,000,000 won of 9,000,000 won of 20,000 won of 9,000 won of 20,000 won of 9,000 won of 20,000 won of 9,000 won of 30,000 won of 30,000 won of 199.

(8) Each of the agreements dated May 19, 199 and May 20, 199 (the second agreement of this case) between the Choi-nam and the defendant Yoon-ho and Kim Ho-ho (the second agreement of this case)

In addition, on May 19, 199, prior to the above agreement with Park Jong-gun and Kim Ho-ho reached an agreement, Defendant 300 million won shall be paid in addition to KRW 300,000,000,000,000,000,000,000,000 in addition to the total amount of money claim equivalent to KRW 600,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,00,000,00.

Accordingly, on May 20 of the following day, Defendant Haok Line and Kim Ho-ho had notarized (No. 1276, No. 1278 of the 199-dong Law Office, No. 1999) and delivered to Gyeong-nam, and the original copy of each of the seizure and assignment order of this case was also drawn to Gyeong-nam (hereinafter the above agreement No. 2 of this case between Gyeong-nam and Defendant Maok and Kim Ho-ho and May 20, 199).

(9) Failure to comply with the first and second agreements of this case

In order to implement the provisions of the Agreement in the instant case, Defendant Hacheon- Line, Defendant Kim Jong-dong, and Park Jong-ho, the staff of Defendant Kim Jong-ho, and Park Jong-chul et al., together with the Chuncheon District Court in order to cancel provisional attachment, etc. on the claim for the construction payment of this case in the name of the Defendant, and intend to pay the price under the instant agreement from Park Jong-sung, but Kim Jong-ho, who was contacted with the highest Gyeong-nam, demanded the return of the bill, check, and check issued by the Defendant, including the part on the bill, check, and check issued by the Defendant, as well as the part on the bill, check, etc. issued by the Defendant, and did not cooperate in the transfer of the “Semul power” if the Defendant did not comply with the said agreement, the content of the Agreement in the instant case, such as cancellation of provisional attachment and payment of the agreed amount, was not implemented.

(10) Park Jong-sung, Park Jong-nam's "Semulgion power" acquisition (the agreement dated May 31, 199), and succession to the construction

After that, as a result of Park Jong-young's 1,50,000 won or less, on May 31, 1999, after entering into a contract to take over the plaintiff's shares from Kim Jong-hee and Kim Young-chul's individual business chain's right to operation and the plaintiff's shares from his corporate business chain's private business chain's private business, and to resolve the total amount of 1,150,000,000 won or less related to the seizure and provisional seizure of the claim for the construction of this case against the defendants and Ansan-chul's common business owner's rights and obligations, other than the above debts, in the case of the bill or check and its liabilities endorsed in the name of Kim Young-chul's representative, Kim Jong-hee and Kim Young-chul's common business owner's duty and obligations, and the plaintiff signed an agreement with the representative director of the 1,000,000,0000 won or more from his private business owner's 2,000 won or more from his private business owner's common business's title.

(11) The implementation status of the First and Second Agreements in this case

However, in contrast to the agreement on June 7, 199 as of May 20, 199, the defendant Yok and Kim Jong-ho were additionally issued a provisional seizure order (9Kahap192) against the claim for the construction cost of this case from the Chuncheon District Court as the preserved right. On June 24, 199, the defendant 200 million won was deposited in the ordinary deposit account at the Chuncheon branch of the Hancheon Bank of Korea. The defendant 200 million won was subject to the above provisional seizure order as against the claim for the construction cost of this case, namely, the obligation of the defendant to oppose the above agreement by the 30th day of the same month, the cancellation of provisional seizure and the repayment of Kim Jong-ho's loan, Kim Jong-ho's claim for the construction cost of this case, and the above order for provisional seizure was revoked by the court's ruling on June 24, 199, and the defendant 200 million won was not subject to the above provisional seizure order and the above order for 1000 billion won.

(12) Deposit of the instant claim for construction payment prior to Korea, the court’s dividends, and the Plaintiff’s objection

On the other hand, while accepting and operating the plaintiff around June 199, the Hun-Ba paid the employees' wages and material costs, various taxes and public charges, etc., and added the operating funds, and resumed the construction of this case. However, the Hun-Ba did not pay the construction price to the plaintiff on the grounds that the creditors such as the defendants, etc. have concurrent seizure and provisional seizure as to the claim for the construction price of this case against Kim Jong-deok, and as seen earlier, deposited KRW 1,66,714,500 out of the construction price to the Chuncheon District Court for eight times from August 4, 1999 to February 16, 200. The Hun-Ba deposited KRW 1,66,714,500 out of the construction price with the Hun-Ba in the distribution procedure of this case, and distributed KRW 250,000,000 to the defendant Kim-ho, and the plaintiff distributed KRW 40,108,780,780 as the assignee, and the debtor's surplus distributed 267874.

C. Determination

According to the above facts, the claim of this case against the defendant Maok and Kim Jong-ho was extinguished in accordance with the agreement of this case, and the claim against the defendant Maok Kim Young-chul was transferred on February 23, 199 and also extinguished in accordance with the agreement of this case. Thus, the dividends that the defendants received in the distribution procedure of this case were based on the non-effective amount and the claim against the plaintiff Maok-ok's debt collection. Therefore, it is difficult to view that the plaintiff's right to the above part of the distribution schedule of this case was transferred to the defendant 1 to the defendant Maok-ho and the defendant Ma-ho's right to the above construction contract in order to maintain the above Kim Young-ok's right and duty to the above part of the construction contract of this case, and it is difficult to view that the plaintiff's right to the above part of the construction contract of this case was transferred to the defendant 1, 147,468, and 170 won prior to the above execution of the construction contract of this case.

D. Determination as to the defendants' assertion

(1) As to this, the Defendants asserted that the agreement of the first and second agreements of this case was null and void by refusing to pay money under the above 1 and 2 agreement, or at least 30,000 won, the maximum amount of money was not fulfilled on June 15 and June 25, 1999, and that the agreement of this case was null and void by clearly stating that the Defendants did not perform their obligations under the agreement of this case against the Defendants, and that on May 20, 199, the agreement of this case was null and void by expressing that the Defendants did not legally express their intent to discharge their obligations under the above agreement to the Defendant Yoon-ok and Kim Jong-ho on June 25, 199, and that the agreement of this case was null and void by notifying the above agreement of the agreement of this case No. 250,25,000.

On May 20, 199, Kim Jong-k, as seen earlier, demanded the above Defendants to return all bills and checks issued by him, including not only the portion related to the obligation of "Semulative power," but also the portion related to the obligation of "Semulative power," but also there is no evidence to acknowledge it otherwise, as it seems consistent with the above, with regard to the fact that Park Jong-kak and Choi Jong-k, who refused to pay money (age KRW 20 million, 300,000,00 won, e.g., the maximum amount of KRW 230,00,000) under the 1 and 2 agreement, and that they were to invalidate or cancel the payment of money (age KRW 230,00,000,000).

Therefore, even if Kim Jong-hee demanded the above defendants to return it, the above defendants should return only the bill and check related to the claim against the "Semul Electric Power" Kim Jong-sung pursuant to the agreement of this case. Thus, even though Kim Jong-ho did not return all the bill and check issued by the above defendants to the above defendants to the above defendants, such circumstance alone shows that the agreement of this case No. 1 is impossible or is not affected by the validity of the agreement of this case. Thus, the above facts alone cannot be deemed as null and void, and the above defendants' above assertion is without merit.

In addition, in light of the purport of the first agreement of this case, the above defendants' opposite obligation to pay KRW 200 million to the above defendants, namely, the obligation of the above defendants, namely, the cancellation of seizure and provisional seizure of the claim for the construction payment of this case, and the return of bills and checks related to the claims for loans against Kim Jong-deok. As seen earlier, the above defendants deposited KRW 200 million of the agreed price in the bank account from the Park Jong-young. The above defendants did not perform the opposite obligation under the above agreement and received the opposite obligation at the same time, but did not perform the opposite obligation under the above agreement and did not pay the agreed price, but did not perform the above agreement. However, as long as it can be seen that the above defendants did not properly implement the above agreement, since they did not perform the opposite obligation under the above agreement and did not pay the agreed price.

(2) On the other hand, in relation to the instant agreement, Defendant Maok and Kim Ho-ho notified the withdrawal of the transfer of the claim for the construction price to the Choi Jong-nam on June 9, 199, and Kim Jong-nam also notified the said Defendants of the transfer of the claim for the construction price of KRW 100 million on June 14 of the same year, by asserting that the said Defendants did not have the obligation to pay the transfer price of KRW 100 million, and notified the Defendants of the unilateral notification of the transfer of the claim for the construction price of June 15 and June 25 of the same year. The said Defendants notified the said Defendants of the refusal to pay the additional KRW 100 million due to the said Defendants’ failure to perform the said Defendants’ commitment, and therefore, it can be recognized that the said Defendants notified the transfer of the claim for the construction price as invalid.

However, even if the agreement Nos. 1 and 2 was concluded on the same day, the parties to the contract, the object, and the terms and conditions of the contract are different; the above Defendants agreed to receive KRW 300 million from the lowest amount of the total amount of the deposit claim of this case in return for the payment of KRW 100 million; and the Defendants’ assertion that the agreement of this case was rescinded along with the agreement of this case on the ground that the ownership of the real estate offered as security was transferred to Defendant Maok in the event that the maximum amount of KRW 100 million was not paid additionally; in light of the developments, methods, and contents of the conclusion of the agreement of this case Nos. 1 and 2 agreement, the agreement of this case Nos. 1 and 2 are separate agreements between the above Defendants, and it is difficult to view that the cancellation and its validity of the agreement of this case were affected by the validity of the agreement of this case No. 1 agreement between the above Defendants and Park Jong-nam.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of its reasoning. Since the judgment of the court below is unfair on the ground of its conclusion, it is revoked, and it is so decided as per Disposition by the court below to correct the dividend amount of 297,468,170 won against the plaintiff among the distribution schedule of this case as 1,147,468,170 won, the dividend amount of the defendant leok for the defendant leok, the dividend amount of 40 million won against the defendant Maok, the dividend amount of 250,000 won against the defendant Maok, and the dividend amount of 250,000 won against the defendant

Judges Kim Jong-sung (Presiding Judge)