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(영문) 서울고등법원 2016.07.22 2012나96245
공사대금
Text

1.The judgment of the first instance shall be modified as follows:

The part of KRW 64,168,706 among the claims of the plaintiff succeeding intervenor shall be brought.

Reasons

1. The reasoning for this Court’s explanation concerning this part of the underlying facts is as follows: A or A evidence Nos. 1 and 2 is added based on the recognition of facts; and, in addition to adding the following contents to Chapter 3, 7, following the judgment of the court of first instance, Paragraph 1 is the same as that of the judgment of the court of first instance; therefore, this part is cited in accordance with the main sentence of

F. On February 25, 2014, the Intervenor received a transfer from the Plaintiff of all the construction cost and damages for delay that the Plaintiff had against the Defendant under the instant construction contract, and the Plaintiff notified the Defendant of the assignment of the said claim on the same day and received the said notification from the Defendant around that time.

2. Whether the part of KRW 64,168,706, among the intervenor's claims, is legitimate;

(a) If there exists a seizure and collection order against the claim, only the collection obligee may institute a lawsuit for performance against the garnishee, and the debtor loses the standing to institute a lawsuit for performance against the seized claim;

(See Supreme Court Decision 2007Da60417 Decided September 25, 2008). In full view of the purport of the entire pleadings in the written evidence Nos. 28-2 and 3-2 of the evidence Nos. 28-3, it can be acknowledged that the above order was served on the Defendant on April 22, 2013 by obtaining the attachment of the part up to KRW 64,168,706 out of the construction price claim of this case, and the attachment and collection order of the content of the collection (including the part transferring provisional attachment to the provisional attachment).

According to the above legal principles and the facts of recognition, the part concerning the above 64,168,706 among the claim for the construction cost of this case asserted against the defendant is unlawful because the plaintiff lost the standing to file a lawsuit for performance, and the part concerning the intervenor's assertion that the plaintiff acquired the plaintiff's status is also unlawful.

B. In relation to this, the Defendant, in addition to the above assignment and collection order, up to KRW 26,498,211, among the instant construction price claim on June 29, 2015, M, the creditor against the Plaintiff.

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