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서울고등법원 2011. 4. 27. 선고 2010나86664 판결
[추심금][미간행]
Plaintiff and appellant

Han system Chang (Law Firm Chuncheon, Attorneys Shin Tae-young, Counsel for the defendant-appellant)

Defendant, Appellant

Defendant

Conclusion of Pleadings

March 2, 2011

The first instance judgment

Seoul Western District Court Decision 2009Kahap6608 Decided August 19, 2010

Text

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

A. The defendant shall pay to the plaintiff 10,095,495 won with 5% interest per annum from August 12, 2008 to April 27, 201, and 20% interest per annum from the next day to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

3. The above paragraph 1(a) may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 215,758,495 won with interest of 20% per annum from August 12, 2008 to the date of full payment.

Reasons

1. Facts of recognition;

(a) Claims for the construction cost against the defendant of the Dae Chang-gu Co., Ltd. (hereinafter referred to as " Dae Chang-gu Co., Ltd");

1) On April 12, 2007, the Defendant issued a contract for the construction work for the construction work of an apartment-type factory (hereinafter “instant construction work”) between 150-20 and 2 parcels of land in the Sinpo-si, Sinpo-si, Sinpo-si (hereinafter “instant construction work”) by setting the construction cost of KRW 3,080,000,000 (the construction cost of KRW 2,800,000,000 + value-added tax of KRW 280,00,000,000, and the construction period of KRW 280,000,000,000 (hereinafter “agreement construction cost”) from May 21, 2007 to December 30, 207.

2) At the time of the above contract, the Defendant and the Dae Chang-gu Co., Ltd separately entered into a contract with the construction cost of KRW 5,137,00,000 (cost of construction KRW 4,670,000 + value-added tax of KRW 467,00,000). The said contract is used only for the purpose of submitting it to the government offices (to the public offices and tax offices). On the other hand, the Dae Chang-gu Co., Ltd agreed to additionally receive value-added tax and value-added tax of KRW 187,00,00 (value-added tax of KRW 467,00,000 - KRW 280,000) from the Defendant.

3) On April 22, 2008, the defendant agreed to pay KRW 200,000 to the above company by August 31, 2008 (the defendant led to the confession of the above fact on the date of the first pleading in the trial).

4) On June 10, 2008, the Presidential Decree completed a factory and delivered it to the Defendant.

B. The Plaintiff’s claim for the construction cost of the subcontracted work for the period of the work

1) On January 19, 2008, the Plaintiff entered into a contract for construction work with the Dae Chang-gu Government and the construction work of this case, which would receive a subcontract for construction work cost of KRW 258,500,000 (including value-added tax). On May 20, 2008, the Plaintiff entered into a contract for the modification that would increase the construction cost of the said construction work to KRW 302,50,000 (including value-added tax; hereinafter “subcontract claim”).

2) On May 30, 2008, the Plaintiff completed the construction work, such as the above title, but as a part of the construction cost did not receive KRW 212,50,000,00, the Plaintiff filed an application for a payment order seeking payment of the said construction cost (Seoul District Court Decision 2008Da2840). On July 1, 2008, the said court ordered the Plaintiff to pay the payment amount of KRW 212,50,000 to the Plaintiff, and the said order was finalized on July 23, 2008.

C. A seizure and collection order for the construction cost of this case

1) On June 23, 2008, the Plaintiff was issued a provisional attachment order against the claim that provisionally seizes the claim for the payment of the construction price of this case against the obligor, the obligor, the third obligor, and the Defendant and the claim amount of KRW 212,50,000 (hereinafter “the provisional attachment order of this case”), and on June 30, 2008, the above decision was served on the Defendant on June 30, 2008.

2) On August 6, 2008, upon the above payment order, the Plaintiff transferred the above provisional seizure to the above court 2008TTT 5588, and received the seizure and collection order (hereinafter “the collection order of this case”) to collect KRW 215,758,495 (including interest in arrears, etc.”) out of the construction price of this case. The collection order of this case was served to the Defendant on August 11, 2008.

[Ground of Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 4-1, 2, Gap evidence 5-1, 2, Gap evidence 6-1, 7-2, Gap evidence 7-1, 2, and the purport of the whole pleadings

2. Determination

A. The total amount of the construction cost that the defendant shall pay to the public Corporation

According to the above facts, the total amount of the construction cost to be paid by the defendant to the Dae Chang Construction Co., Ltd. is KRW 3,467,00,000 (the agreed construction cost of KRW 3,080,000 + value added tax + KRW 187,00,000 + Additional construction cost of KRW 200,000,000).

(b) Mutual aid;

3,371,147,485 won of the sum of the following amounts shall be deducted from the claim for construction cost of Tae Chang-gu Co., Ltd.: there is no dispute between the parties, or the plaintiff is the person who is the plaintiff.

① Construction price of KRW 2,803,00,000 paid by the Defendant to the Dae Chang-gu Co., Ltd until April 20, 208

2. 37,09,570 won, which the Defendant discharged on behalf of the Minister of Strategy and Finance on behalf of the Minister of Strategy and Finance, and 116,734,055 won, which the Defendant discharged on behalf of the Minister of Strategy and Finance.

3. Health insurance premiums paid by the Defendant to the Chang Chang-gu Government, KRW 8,592,650, and electric charges of KRW 5,834,260.

④ 2,279,983 won for the instant construction works, and 15,411,00 won for the warranty bond to be paid by the public official in the relevant construction works

⑤ The principal of the construction cost of KRW 252,329,867 deposited by the Defendant with the Depositer on September 23, 2008 as the Depositer on September 23, 2008 under the jurisdiction of the Suwon District Court No. 9740, which was executed by the Defendant on September 248, 048,482

6) The Daejeon District Court Branch 2008Gahap1087 decided upon the collection amount of KRW 104,147,485 brought against the Defendant by Nonparty 2

7. 30,000,000 won of promissory notes discounted by the Defendant on the public offering in the public offering in the public offering in the public offering in the public offering in the public offering (the issuer's preliminary sale in the public offering company, the date of issuance on March 26, 2008, June 21, 20

Therefore, if the above money is deducted from all, the construction cost that the Defendant has to receive is 95,852,515 won (=3,467,00,000 - 3,371,147,485).

(c) Whether set-off defenses based on the claims related to promissory notes of a par value of KRW 100,000 are permissible;

1) The parties' assertion

The defendant asserts that a promissory note amounting to KRW 100,000,000, which is paid at a discount on the face value of 100,000,000, is set off against the claim for the construction cost of the substitute public (the defendant's assertion appears to the purport of both the claim for reimbursement against the substitute public and the claim for the cause thereof).

As to this, the plaintiff asserts that the period of repayment of the above claim has not yet arrived at the time of the provisional seizure, and that since the period of repayment of the automatic claim has not yet arrived at the time of the provisional seizure, the defendant cannot set up against the plaintiff who is the execution creditor.

(ii) the facts of recognition

A) If the purport of the entire pleadings is added to the statements in the evidence Nos. 3 and 13 of Eul, the defendant paid KRW 83,00,000,000 to the public tender for the new post on April 22, 2008 after discounting one promissory note (10,000,000,000,000,000,000) from the public tender for the new post on April 2, 2008.

B) The fact that the construction of a building was completed and the construction was delivered to the Defendant on or around June 10, 2008 on or around June 10, 2008 is recognized that the Defendant paid the construction cost according to the evidence No. 1-1 of the evidence No. 1, and that the Defendant paid the construction cost in accordance with the process. Therefore, the final payment period of the construction cost claim that the Defendant had against the Defendant is around June 10, 2008.

3) The judgment of this Court

A) In a case where a private person, other than a financial institution, receives a request for financing from the other party to a transaction, and delivers to the other party the balance after deducting interest from the face value to the maturity, etc., it is reasonable to deem that the bill was not purchased with an emphasis on the value of the bill in ordinary, but it was lent money to the other party by lending the bill as security, reliance on the other party’s credit and financial ability, which is the client at the discount of the bill (see Supreme Court Decision 2001Da5598, Apr. 12, 2002, etc.).

According to the above facts, on April 22, 2008, the defendant lent 89,480,822 won on July 25, 2008 (=83,000,000 + (83,000,000 + (83,000 x 95/365 x 30% per annum as prescribed by the Interest Limitation Act) to the public official of the Republic of Korea, and Article 3 of the Interest Limitation Act was issued a promissory note of KRW 100,000 per face value to secure this.

B) When there exists a seizure and collection order which is transferred from the provisional seizure against a monetary claim to the original seizure, the garnishee may oppose the execution creditor on the grounds that the garnishee can oppose the seizure debtor before the provisional seizure is effected (see Supreme Court Decision 2000Da43819, Mar. 27, 2001). As long as the opposing claim has been established or acquired at the time of the provisional seizure, the garnishee may oppose the execution creditor by offsetting if there is a offset (non-limited theory).

In this regard, the Supreme Court Decision 82Meu200 Decided June 22, 1982 ruled that "in case where a third party obligor who has received the provisional attachment order has a opposing claim against a debtor who has the provisional attachment order, both claims should be offset at the time the provisional attachment takes effect in order to oppose the creditor who has the provisional attachment order, or where the opposing claim does not reach the due date at the time of the provisional attachment, it shall be the case where both claims are reached at the time of the set-off, or where the opposing claim does not reach the due date at the time of the provisional attachment, it shall be the case where the obligor reaches the due date at the time of the provisional attachment or at the time of the set-off." The opinion supporting the Supreme Court's decision (based on the repayment period theory) shall protect the third party obligor's reasonable expectation interest for the set-off, but where the maturity of the automatic claim comes later than the due date of the claims to be seized, it is not reasonable for the third party obligor's expectation for the set-off.

However, it is not reasonable to determine the existence of reasonable expectation interest for set-off by the third party obligor on the basis of both claims before and after the due date for payment for the following reasons.

(1) Article 498 of the Civil Act provides that “A third party obligor who is subject to the prohibition of payment cannot set up against the obligee who has applied for the order, as a set-off based on the claims acquired thereafter.” This only prohibits set-off against the claims acquired after the seizure, and does not require that the due date be reached at the same time as or first of the due date of the passive claim if the due date of the automatic claim has not yet arrived. This is understood to have been achieved by regulating interests between the execution creditor and the third party obligor and prohibiting only set-off against the claims acquired after the seizure as the automatic claim.

(2) Even in cases where the maturity of the automatic claim comes later than that of the passive claim, it is unreasonable or unreasonable to expect that the third-party obligor be relieved of his/her obligation by offsetting the attached claim with his/her opposing claim in case where the offset occurs due to the arrival of the maturity of the automatic claim later.

Rather, if we decide whether to set off a promissory note formally based on the time of payment, such as this case, is unreasonable deprivation of expectation interest of the third party obligor for set-off. Examining this case, two promissory notes collateral collateral claims owned by the defendant have been acquired for the same reason before provisional seizure takes effect, but only there is a difference in the time of payment. In other words, in this case, the effective date of provisional seizure takes effect on June 30, 2008, and the due date of the seized claim is around June 10, 2008, and the due date of payment of promissorysory notes worth KRW 30,00,000 can not be seen as a reasonable set-off claim of the defendant against the plaintiff on June 21, 200, or 100,000, or more than the due date of payment on July 25, 2008. Accordingly, even if the due date of payment on a provisional seizure takes effect, it is difficult for the defendant to have set-off a claim against the plaintiff at the time of payment on a 1000-year.

(3) On August 20, 1999, the Supreme Court Decision 99Da18039 Decided August 20, 1999 held that "it can be set up against the assignee with the reasons that occurred with respect to the transferor until the obligor's consent was given, and even if there was no reason to set-off at the time of the consent, if there was no reason to set-off, then the obligor may set-off against the assignee."

C) Therefore, as long as a counterclaim has been established or acquired at the time of the provisional attachment entry into force, it is reasonable to view that the garnishee may set-off against the execution creditor, if a set-off occurs, and therefore, the defendant may set-off the loan claim with a promissory note of KRW 100,000,000 against the public tender in order to offset it against the claim for the construction price of the public tender in the public tender in the public tender in the public tender.

The fact that the Defendant’s reply on September 25, 2009, containing the Defendant’s declaration of set-off, delivered to the Plaintiff on September 30, 2009, is apparent on the record. As such, the Defendant’s obligation on the above loans and the obligation on the construction cost claim on July 25, 2008, shall be extinguished within the equivalent amount on July 25, 2008, which is set-off date. The Defendant’s claim on the construction cost against the Defendant on the Defendant in the Dae Chang New Airport on the basis of set-off date (i.e., KRW 9,57,317 (= KRW 95,85,852,52,515 + + KRW 95,85,852,56/465 x below KRW 6% per annum under the Commercial Act 89,480,822, which is set-off on the above set-off date. The Defendant’s claim on the Plaintiff in the New Airport was extinguished on the date of set-off (i.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff, a legitimate collection authority, 10,095,495 won and damages for delay calculated by the ratio of 5% per annum under the Civil Act from August 12, 2008 to April 27, 2011, which is the date of the ruling of the court of first instance that the defendant deems reasonable to dispute as to the existence and scope of the obligation to perform, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

The plaintiff's claim of this case shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed as without merit. Since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by accepting part of the plaintiff's appeal and changing the judgment of the court of first instance as above.

Judges Cho Young-chul (Presiding Judge)

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본문참조판례

의정부지방법원 고양지원 2008차2840호

2008. 6. 23. 의정부지방법원 고양지원 2008카합1108호

2008. 8. 6. 위 법원 2008타채5588호

대전지방법원 서산지원 2008가합1087호

대법원 2002. 4. 12. 선고 2001다55598 판결

대법원 2001. 3. 27. 선고 2000다43819 판결

대법원 1982. 6. 22. 선고 82다카200 판결

대법원 1999. 8. 20. 선고 99다 18039 판결

본문참조조문

- 이자제한법 제3조

- 민법 제498조

원심판결

- 서울서부지방법원 2010. 8. 19. 선고 2009가합6608 판결