2010Na102610 Preemptives

JO (000000 - 00000)

Seoul 00 Dong 00 00 - 0,000

Seoul High Court Decision 00Gu 00 Dong 000 - 00

0.0.0

00:0 00 00 - 00 00 00 0

Service place 00:00 00 00 - 00 00 00 00

Representative Director, Head of 00

Seoul Eastern District Court Decision 2010Gahap5739 Decided October 8, 2010

April 26, 2011

May 31, 201

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall, if he removes construction works in accordance with the removal construction contract concluded between the plaintiff and Kim 00, do so 1

The plaintiff shall be paid KRW 30 million to the plaintiff (in the case of a trial, the plaintiff will be paid in the future in the simple implementation of the purport of the claim.

The action was changed to the action).

2. Purport of appeal

The order is as set forth in the text.

1. Basic facts

The following facts may be acknowledged by adding up the purpose of all pleadings to each entry in Gap evidence 1 through 6 (including a branch number, if any) without dispute between the parties or by considering the whole purport of the pleading:

① On January 7, 2009, the Plaintiff respectively lent KRW 30 million to Kim 00,000, and KRW 75 million to Lee 00 on nine occasions from January 9, 2009 to September 19, 2009.

② On March 3, 2010, Kim 00 and Lee 00 transferred to the Plaintiff the claim of KRW 130 million out of the construction cost claim of 200 million of the removal construction work for the construction of '00 construction work' against the Defendant at Kim 00 on March 3, 2010 for the repayment of the above loan, and Kim 00 notified the Defendant of the assignment of the claim by the content-certified mail on March 10, 2010, and the above content-certified mail sent to the Defendant on March 15, 2010.

2. The plaintiff's assertion

The Plaintiff is entitled to exercise the right according to the assignment of claims as a transferee of the claim for construction price against the Defendant Kim 00. Accordingly, the Defendant did not have concluded the instant construction contract in a fixed manner, or claimed that the instant construction contract was changed to the construction site located in 00 Do00, and there is no room for the claim for construction cost as the changed construction works commenced. In light of such Defendant’s attitude, even if Kim 00 completes the removal works in accordance with the instant construction contract, it cannot be expected that the Defendant would discharge the Plaintiff’s obligation even if the removal works are completed in accordance with the instant construction contract, and thus, the Defendant seeking the payment of the acquisition amount of the instant construction

3. Determination

In a case where a future claim becomes final and conclusive to a certain degree at the time of transfer and it is expected that a future claim will occur in the near future, it may be transferred (see Supreme Court Decisions 95Da7932, Jul. 30, 1996; 95Da21624, Jul. 25, 1997; 95Da21624, Jul. 25, 1997; 95Da21624, Jul. 25, 1997). Meanwhile, in order to be lawful in a lawsuit for future performance with respect to a claim that may arise in the future or a claim that may not occur in the future, the legal and factual relationship, which serves as the basis for the occurrence of the claim, shall exist at the time of the closing of argument, and such situation shall be expected to continue and the claim in advance shall be required (see Supreme Court Decision 95Nu490

In light of the above legal principles, in order for the plaintiff to accept the plaintiff's future performance claim of this case, Kim 0O actually started or is anticipated to start the construction work under the construction contract of this case. Accordingly, it should be acknowledged that there is a considerable probability as to the specific amount of the claim for the construction cost or the arrival of the due date. The following circumstances, namely, according to the construction contract of this case, although the scheduled date of commencement is July 30, 2008, the construction work of this case was made on July 30, 2008, and it is not expected that the construction work will be commenced between early and late, without the completion of the construction work until the closing date of oral argument, at 00:00,000, which is the construction site of this case, and it is difficult for the defendant to claim that the construction work price of this case would be changed to the construction price of this case, and there is no further specific assertion that the construction price of this case would have been changed to the construction price of this case from 00:00,000 to Do100.

Therefore, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim changed in the trial court shall be dismissed due to the lack of reason, and the judgment of the court of first instance shall be dismissed with different conclusions, so the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition

Judges of the presiding judge;

Judges Park Tae-ok