(영문) 서울고등법원 2014. 1. 9. 선고 2013나49284 제22민사부 판결

A. The Defendants jointly and severally pay 19,445,238,35 won to the succeeding intervenors and co-litigants and 7,310,854,937 won per annum from April 14, 2009 to February 5, 2010; 20% per annum from the following day to the date of full payment; 12,134,383,418 won per annum from April 14, 2009 to January 9, 2014 to the date of full payment; 20% per annum from the next day to the date of full payment; and 30% per annum from the date of full payment to the date of full payment.

B. Each of the remaining claims of the plaintiff and the co-litigation intervenor are dismissed.

2. 10% of the total costs of the lawsuit between the succeeding intervenor and the Defendants is the 10% of the total costs of the lawsuit between the Plaintiff and the co-litigation intervenor, and the remainder is each borne by the Defendants, and 10% of the costs of the participation is borne by the supplementary intervenor by the Plaintiff succeeding intervenor, and the remainder is borne by the Defendants.

3. Paragraph 1(a) of this Article may be provisionally executed.

Purport of claim and appeal

1. Claim by the plaintiff and the co-litigation intervenor: The defendants shall jointly and severally pay 20,185,651,635 won to the plaintiff and the co-litigation intervenor (hereinafter referred to as "the succeeding intervenor") and 6% per annum from October 22, 2005 to the service date of the duplicate of the complaint of this case, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

A. The purport of the appeal by the plaintiff (ex officio): The part against the plaintiff (ex officio) which falls under the part against which payment is sought under the judgment of the court of first instance shall be revoked. The defendants shall jointly and severally pay to the plaintiff 12,874,796,698 won and the amount equivalent to 6% per annum from October 22, 2005 to the service date of the copy of the complaint of this case and 20% per annum from the next day to the day of full payment.

B. Purport of appeal by the Defendants: The part against the Defendants in the judgment of the court of first instance shall be revoked, and the claims of the Plaintiff (Withdrawal) and the co-litigants falling under the above revocation part shall be dismissed

Reasons

1. Basic facts

A. Around 1993, Defendant School Foundation B (hereinafter referred to as “Defendant B”) established a plan to move the school facilities of Yongsan-gu Seoul Metropolitan Government and 15 lots (hereinafter referred to as “D site”) to E forest land E 8,033 square meters and 33 lots (hereinafter referred to as “land for use”).

B. Accordingly, on June 28, 1996, Defendant B was the seller of the D site and the truster of the D site, and was appointed on May 19, 2006 as the bankruptcy trustee by the Suwon District Court, which was declared bankrupt on June 28, 1996 by the Korea Real Estate Trust Co., Ltd. (the Suwon District Court, Jun. 2, 2003, and May 19, 2006).

It concluded a basic arrangement with the promotion corporation (hereinafter referred to as the "scambling") to promote the plan for the relocation of campus.

C. On June 28, 1996, Sejong Special Metropolitan City concluded a real estate sales contract with the Defendants, a joint seller, to purchase D sites in KRW 287,024,471,400 (hereinafter “instant sales contract”).

D. After that, when a promissory note delivered from around December 1998 to Sejong, etc. with the name of the purchase price of D site, etc., was settled or the validity of the payment guarantee therefor was lost, Defendant Han-chul notified Sejong to implement the instant sales contract, and notified that the instant sales contract was cancelled on August 19, 199 in a case where the details of the agreement on financing are not implemented to Sejong around August 14, 199. Since Sejong-do failed to implement the said agreement, the instant sales contract was rescinded on August 19, 199.

E. At around February 2001, Sejong High Court filed a lawsuit seeking the return of KRW 1.8 billion out of the purchase price claim following the cancellation of the sales contract of this case as the preserved right, and filed an application for provisional seizure of each real estate over two times. With respect to D sites on February 6, 2001, each of which was accepted by the new office, and the provisional seizure of each real estate was completed as to D sites on February 7, 2001. In addition, around October 2001, Sejong High Court of Seoul High Court against the Defendants, the first instance court of this case claimed the effect of the cancellation of the sales contract of this case as to D sites, and the first preliminary appeal filed a lawsuit claiming the return of KRW 1.8 billion out of the purchase price already paid as the restitution claim following the cancellation of the sales contract of this case. The appellate court of this case rejected the claim on February 18, 2005 or the second appeal dismissed the claim on February 25, 2005.

Supreme Court Decision 2005Da20620 Decided December 21, 2006 was dismissed.

F. Meanwhile, the creditors including the new comprehensive financial company (the Korea Deposit Insurance Corporation of the new comprehensive financial company that was declared bankrupt by the Seoul District Court on October 9, 1998 was appointed as the trustee in bankruptcy on December 17, 2001 by the Korea Deposit Insurance Corporation of the new comprehensive financial company that was declared bankrupt; hereinafter referred to as the "Plaintiff (Withdrawal)" without distinguishing between the bankrupt and the plaintiff; from February 2003, the creditors of the Sejong Special financial company including the new comprehensive financial company that was declared bankrupt, were subject to seizure and provisional attachment of the total amount of KRW 21,985,651,635 of the purchase price refund claims against the defendants as the contract of this case was cancelled from February 2003 to October 205.

G. On March 13, 2003, the Plaintiff (Withdrawal) filed a lawsuit against the Sejong District Court seeking the payment of a discount loan on the bill, and on November 13, 2003, the Defendant (Seoul District Court 2003Kadan79589) rendered a final judgment of 85,64,48,288 won and 17,026,826,859 won among them, from June 14, 2003 to 28,732,071,715 won, from April 14, 1998 to 22,685,590,254 won, from July 21, 1998 to 320 million won, from June 10, 199 to 1400 billion won, and from 320 billion won, from 200 billion won to 300 billion won, the final judgment of 1405 billion won to 30 billion won was finalized.

On October 18, 2005, according to the final judgment of this case with executory power of October 18, 2005, the Plaintiff (Withdrawal) received the attachment and assignment order (A evidence 1; hereinafter referred to as the “instant assignment order”) as to “the amount of money until it reaches 200 billion won out of the amount obtained by subtracting the amount of KRW 21,985,651,635, from among the sales price refund claims for which attachment and provisional attachment are concurrent as follows, from among the sales price refund claims against the Defendants upon the rescission of the instant sale contract, the claim amount of KRW 200,000,000 in Seoul Southern District, which was KRW 205,00,000,000. The following portions are as follows:

① On February 21, 2003, the sum of KRW 185,651,635, which was seized by the Plaintiff (ex officio) under the order of seizure and collection with the District Court 2003TTT 1376, and KRW 1,800,000, which was provisionally seized on May 1, 2003 by the order of provisional seizure against claims by the Seoul District Court 2003Kadan11032, and KRW 10,000,000, which was provisionally seized by the order of provisional seizure against claims by the Kudong Construction Co., Ltd. on November 6, 2003 by the Seoul District Court 203Kadan7328, the amount of KRW 10,000,00,000,000 as the provisional seizure against claims by the bankruptcy trustee of the bankrupt Co., Ltd. (hereinafter referred to as the “Bankruptcy”), calculated on July 12, 2005, the provisional seizure of KRW 105010.

H. As of October 21, 2005, the instant assignment order was issued to the Defendants, the Plaintiff’s claim on the discount loan amounting to the Plaintiff (Withdrawal) was KRW 221,545,571,530, totaling the principal and interest, and the claim on the refund of the purchase-price against the Defendants was KRW 180,435,682,189, totaling the principal and interest as of October 21, 2005.

Meanwhile, on November 22, 2005, based on the original copy of the final judgment of this case with executory power, the Plaintiff (Withdrawal) received the attachment and collection order (hereinafter “the collection order of this case”) with respect to “the amount obtained from the remainder obtained by deducting the entire amount pursuant to the instant assignment order from the purchase price refund claim, which was held against the Defendants due to the cancellation of the instant sale contract, from the remainder of the claim amount obtained by deducting the entire amount pursuant to the instant assignment order from the purchase price refund claim,” and the original copy of the said decision was served on Defendant B on November 25, 2005, and on November 28, 2005, respectively on Defendant Han-tae.

I. On February 21, 2007, Seoul Central District Court 2007Gahap14358 decided Feb. 21, 2007, the Plaintiff (Withdrawal) deducted the Defendants from the total amount of KRW 21,985,651,635 on the basis of the assignment order of this case, the total amount of KRW 158,450,030,554, which was obtained by deducting the amount of KRW 21,985,65,651,635 from the total amount of principal and interest of the entire claim as at October 21, 2005 as at October 21, 2005.

From October 22, 2005 to September 18, 2007, 6% per annum, and 20% per annum from the next day to the due day to the due date. ② In addition, the Defendants and the Defendants filed a lawsuit claiming for the cancellation of ownership transfer registration in the name of the Defendants B, Hansil Co., Ltd. as to the D site against the Hansil Co., Ltd., which has promoted the D site development project with the Defendants and the Defendant B, and ③ the Defendants and Hansil Co., Ltd., filed a lawsuit claiming for the damages of 63 billion won as to the Plaintiff’s infringement of the Plaintiff’s right to benefit and the damages for delay (hereinafter “the lawsuit for pre-paid installment, etc.”).

(j) The first instance court rejected the Defendants’ defense of extinctive prescription against the Plaintiff’s claim for full payment, and ordered the Defendants to pay the full payment amount, and ordered the Defendants to dismiss or dismiss the remainder of the Plaintiff’s claim. The appellate court appealed from Seoul High Court 2007Na95637, Nov. 11, 2008. The appellate court accepted the decision in lieu of conciliation and confirmed the decision. The main contents of the decision in lieu of conciliation are “(i) the Defendants jointly and severally jointly and severally pay to the Plaintiff (Withdrawal) KRW 128 billion to November 30, 2008. The Defendants paid 20% delay damages per annum from December 1, 2008 to the date of full payment. ② The Plaintiff (Withdrawal) returned the above money to the Defendant’s trust beneficial interest claim to the Defendant, and the Defendants withdrawn from the trust deed and the trust interest claim against the Defendants (Seoul High Court).

(k) On September 11, 2007, the Intervenor A of the first instance trial (hereinafter referred to as the “Co-litigants”) received the claim amount as Seoul Southern District Court amounting to KRW 102,519,452,05 on the basis of the authentic copy of a notarial deed (No. 1513) executed by a notary public on September 11, 2007, 207, with KRW 102,519,452,05, from Seoul Southern District Court 2007 to KRW 102,580, and issued the seizure and collection order of the claim for the refund of the above purchase-price amount. The above original copy was served on the defendant Han-chul on September 17, 2007, and on September 19, 2007, on the basis of the authentic copy of a notarial deed (No. 2009, No. 21599, Apr. 2, 2009, the Defendants were served on each of the above claim amount as KRW 20009,29239,2394.207.

(l) Meanwhile, in the Seoul Central District Court case No. 2010Hahap57, Sept. 8, 2010, the Seoul Central District Court sentenced the bankruptcy of around 10:00 on September 8, 201, and appointed attorney N as a bankruptcy trustee. On March 7, 2011, the above bankruptcy trustee filed an application for the succession to the lawsuit against the plaintiff (ex officio) and the co-litigation on the ground that the collection capacity of the claim for the refund of the purchase-price, which is the subject matter of the lawsuit in this case, was restored from the plaintiff (ex officio) and the co-litigants in the first instance trial and succeeded to their rights, and the plaintiff withdrawn from the lawsuit, but the co-litigation did

Pursuant to Articles 348(1) and 424 of the Debtor Rehabilitation and Bankruptcy Act, with respect to intervention in the co-litigation, the court prior to remand has dismissed the lawsuit of the co-litigation intervenor on the ground that the compulsory execution against the property belonging to the bankrupt foundation based on the bankruptcy claim becomes null and void against the bankrupt estate, and the bankruptcy claim should be exercised pursuant to the bankruptcy procedure. Since the claim to return the purchase-price against the Defendants in the Sejong police, which is the seized claim in the above collection order, belongs to the bankrupt estate due to the bankruptcy in the world, the seizure and collection order of the above co-litigation intervenor lost its validity, and accordingly the co-litigation intervenor lost its standing as a party, the above co-litigation intervenor dismissed the lawsuit of the co-litigation intervenor on the ground that the co-litigation

(m) On March 9, 201, the O Housing Association applied for the intervention of the succeeding intervenor in the case before the remanding of the case, and the Plaintiff (Withdrawal) also applied for the intervention of the succeeding intervenor.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Gap evidence Nos. 7 through 14, Eul evidence Nos. 1 through 3, Eul evidence Nos. 7 and 10, the purport of the whole pleadings

2. Determination as to the cause of the claim

According to the above facts of recognition, the succeeding intervenor's claim for the refund of the purchase price which the succeeding intervenor can seek against the defendants based on the collection order of this case is 20,185,651,635 won (21,985,651,636 won—1,80,000,000 won) where seizure from the creditors in Sejong-Gyeong's case competes with each other, and barring any special circumstance, the defendants are jointly and severally liable to pay to the succeeding intervenor the above 20,185,651,651,635 won and damages for delay.

3. Judgment on the defendants' assertion

A. Claim for the completion of extinctive prescription

(1) Determination as to the defendants' defense

The Defendants: (a) out of the claim for the refund of the purchase price against the Defendants in Sejong, the extinctive prescription of KRW 1.8 billion was interrupted by the final and conclusive judgment of the purchase price lawsuit; and (b) the part concerning the preserved claim totaling KRW 60 billion in each of the instant provisional seizure orders was suspended; (b) the extinctive prescription of the remaining claims remaining after the lapse of the extinctive prescription prior to the issuance of the instant collection order; and

The Plaintiff asserts that the extinctive prescription of the claim for the refund of the purchase price in this case has expired as the Plaintiff (ex officio) had already become extinct in accordance with the judgment of the Plaintiff (ex officio)’s entire gold lawsuit based on the instant assignment order.

The claim for the refund of the above purchase price reaches the due date due to the occurrence of August 19, 199 by the Defendants, who expressed their intent to cancel the sales contract of this case against Sejong, and the above claim reaches the due date pursuant to Article 64 of the Commercial Act, since it was caused by commercial activities between the Defendants and the Sejong, the period of extinctive prescription is five years pursuant to Article 64 of the Commercial Act. Thus, barring any special circumstance, the claim for the seizure of the collection order of this case, which is only a part of the claim for the refund of the purchase price, expired on August 19, 199 and five years after August 19, 2004.

(2) Judgment on the re-defense of the succeeding intervenor 2)

(A) Determination as to the assertion of waiver of prescription benefit

The succeeding intervenor rejected the defendants' defense of extinctive prescription against the plaintiff (ex officio)'s claim for full payment of full amount, and the appellate court rejected the defendant's defense of extinctive prescription and recognized the defendants' obligation to repay when it makes a decision in lieu of conciliation in the appellate court. The defendants paid KRW 128 billion to the plaintiff (ex officio) on November 30, 2008 on the basis of a decision in lieu of conciliation established in lieu of conciliation. The defendants have not made an explicit reservation that the waiver of extinctive prescription benefits at the time of acceptance of a decision in lieu of conciliation or at the time of repayment is limited to the above payment, which is a part of the purchase-price's obligation, and the defendants paid KRW 740,413,280 to L, etc. on November 20, 207. In light of the above circumstances, the defendants have renounced the statute of limitations and paid the proceeds of prescription to the plaintiff (ex officio).

I asserts that it would be.

A debtor who is entitled to the benefits of prescription may waive the benefits of prescription after the completion of the period of extinctive prescription, and this is an expression of intent to not receive legal benefits from the completion of the period of prescription. In addition, determination as to whether there exists an expression of intent to waive such benefits of prescription shall be made objectively and reasonably in accordance with logical and empirical rules, and common sense of society so that it conforms to the ideology of social justice and equity by comprehensively taking into account the details, motive and developments leading up to the indicated act or expression of intent, the purpose and genuine intent that the parties intend to achieve by expressing intent, etc. (see, e.g., Supreme Court Decision 2011Da21556, Feb. 28, 2013). Meanwhile, barring special circumstances, barring any special circumstance, when an assignment order on part of a divisible monetary claim becomes final and conclusive, each independent divided claim is established with respect to the entire part of the claim that was retroactively delivered to the garnishee when the assignment order was delivered to the third obligor (see, e.g., Supreme Court Decision 2007Da3515252)

In light of the following circumstances, the Plaintiff (ex officio) received part of the claim for the refund of the purchase price against the Defendants pursuant to the instant assignment order, and obtained independent partition claims. The remainder of the claim for the refund of the purchase price against the Defendants, which was not entirely paid according to the assignment order, was not subject to any decision in lieu of conciliation. The Defendants received a decision in lieu of conciliation of the principal amount claimed by the Plaintiff (ex officio) and KRW 158,450,554, which was partially 128 billion, from among the damages incurred from delay in the payment of the purchase price, and the Defendants could not be deemed to have received KRW 80,000,000,000 from the Defendants and KRW 50,000,000,000,000 were 60,000,0000,000 won, and thus, it cannot be deemed that there was no dispute between the Defendants and the Plaintiff (ex officio) and the Defendants’ claim for the cancellation of the extinctive prescription period.

(B) Determination as to the interruption of extinctive prescription

(1) The succeeding intervenor asserted the validity of the instant sales contract against the Defendants, and sought the implementation of the procedure for the registration of transfer of ownership based on the instant sales contract, and in exceptional cases, claims for the return of 1.8 billion won out of the sales price claims, as restitution following the cancellation of the instant sales contract. The primary claim is based on the issues pertaining to the existence or absence of the instant sales contract, which is the basic legal relationship where the claim for the refund of the purchase price occurred, and thus, the interruption of extinctive prescription for the entire claim for the refund of the purchase price was suspended, and the preliminary claim for the refund of 1.8 billion won out of the claim for the refund of the purchase price was sought a judgment on the entire claim for the refund of the sale price in question in light of the economic circumstances of the world. Therefore, the interruption

On the other hand, first of all, the main claim seeking the execution of the procedure for the registration of ownership transfer based on the instant sales contract is the subject matter of a claim for the refund of the purchase price following the cancellation of the instant sales contract. Moreover, the claim for the registration of ownership transfer premised on the validity of the instant sales contract and the claim for the refund of the purchase price premised on the cancellation of the sales contract cannot be deemed as having exercised the claim for the refund of the purchase price by exercising the right to claim the registration of ownership transfer, since it cannot be deemed that the basic legal relationship is identical, and therefore, the progress of ex

Next, in a case where it is interpreted that a judgment is sought on the whole of the claims, even if only a part of the claims are claimed, the interruption of extinctive prescription may take effect on the whole claims within the scope of its identity (see Supreme Court Decision 9Da72521, Sept. 28, 2001). However, in a case where a lawsuit is brought by clearly stating the purport that a judgment is sought on only a part of the claims, the interruption of extinctive prescription by means of the lawsuit shall take effect only on the part of the claims, and the remainder does not occur (see Supreme Court Decision 91Da43695, Apr. 10, 1992). According to the evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence evidence No. 7, Sejong can clearly be acknowledged that the above claim of KRW 1.8 billion is a part of claims. According to the above acknowledged facts, the interruption of extinctive prescription becomes effective on the above part of KRW 1.8 billion. Thus, the above assertion is without merit.

(2) The succeeding intervenor asserts that: (a) the period of extinctive prescription was interrupted on the part of KRW 61.8 billion among the claim for the refund of the purchase price against the Defendants; (b) the creditors of the Sejong-Gyeong who seized and provisionally seized the obligee’s assignment order before applying for the assignment order; and (c) the portion of claim for the refund of the purchase price equivalent to KRW 21,985,651,635,

First, with respect to the provisional attachment of the final judgment amounting to KRW 1.8 billion against the Defendants by the Plaintiff (Withdrawal) as to the part of the provisional attachment of the final judgment amounting to KRW 1.8 billion, it is clear that the Plaintiff (Withdrawal) attached the claims amounting to KRW 1.8 billion, and thus, it does not belong to the claims subject to an assignment order. As such, this part is not extinguished by prescription, and it is obvious that it remains subject to collection by the creditors who jointly seized the claims (excluding the successor intervenor from the claim amount

Next, on July 12, 2005, after the five-year prescription period elapsed, the provisional attachment against the portion of the claim for the refund of the purchase price of KRW 10 billion was made on July 12, 2005, and where there was a seizure and provisional attachment against the part of the claim that has not been extinguished by prescription, the provisional attachment is made on the part of the claim that remains in force without extinction of prescription. As such, the provisional attachment against the portion of KRW 10 billion, which was provisionally seized in the period of the commencement of the bankrupt, shall be deemed a provisional attachment against the claim for the refund of the purchase price of KRW 10 billion out of KRW 60 billion which remains in force without extinction of prescription, excluding the above 1.8 billion period, which was excluded from the subject of the application for the assignment order, this part shall also be the part for which the succeeding intervenor may claim against the Defendants.

I would like to raise.

If the remaining 50 billion won (61.8 billion won - 11.8 billion won) of the obligees' remaining 50 billion won of the interruption of prescription were assigned to 10,185,651,635 won (21,985,651,635 won - 1,800,000 - 10,0000 - 10,0000 won) of the obligees' - The provisional seizure of 160 billion won of the remaining 50 billion won of the obligees' - 160 billion won of the provisional seizure of 50 billion won of the provisional seizure of 600 won of the above - 360 billion won of the provisional seizure of 160 billion won of the above - 160 billion won of the provisional seizure of 50 billion won of the above - 160 billion won of the provisional seizure order of the plaintiff's 500 billion won of the total amount of the above 1600 billion won of the provisional seizure order has effect.

The successor intervenor can file a claim (the defendant's assertion that each of the above provisional seizures cannot be asserted again in the lawsuit of this case because the plaintiff has invoked the validity of each of the above provisional seizures in the lawsuit of this case such as full payment, etc.). However, the legal principles on prohibition of the use of preservative measures cannot be useful for the preservation of other rights including the cases where the creditor has lost his/her right to the preservation and the basis of the claim in order to protect the debtor in a case where the creditor has received a final and conclusive judgment against him/her in the lawsuit of this case as to any of the preserved rights. Thus, the above argument cannot be viewed as being applied

Therefore, the re-claim of the succeeding intervenor pointing out the interruption of the extinctive prescription has merit, and eventually, the defendant's objection to the extinctive prescription is without merit.

B. Determination as to the defendants' defense of repayment

(1) The defendants' assertion

The defendants asserted that since L et al. and six other creditors (hereinafter referred to as "L et al.") paid the collection amount to L et al. and were sentenced to a judgment against M taking over the claim from L et al., or that the amount equivalent to the collection amount and the acquisition amount of M paid from L et al. should be deducted.

(2) Determination

(A) First of all, in light of the purport of the arguments in the evidence Nos. 11 through 13 as to the claim for deduction of L, etc., L, etc.’s creditor, etc., the creditor of the Sejong Southern District Court 2007Hu1637, Jul. 3, 2007, which was enforced by the Seoul Southern District Court 2007Hu8421, which was based on the original copy of the payment order No. 2007Hu8421, which was issued a seizure and collection order against L, etc.’s total of KRW 740,413,280, which was issued by the Seoul Western District Court 2007Hu1086, Aug. 7, 207; thereafter L, etc. received the above collection order under the above collection order No. 740,413,280, which became final and conclusive after L, etc.’s receipt of the above payment order against the intervenor’s deposit No. 20148,2707,271487.784.

(나) M에 대한 양수금 공제 주장에 관하여 살피건대, 을 제14호증의 1, 2의 각 기재 에 변론 전체의 취지를 종합하면, M은 서울서부지방법원에 피고 B를 상대로 주식회사코리아찝으로부터 양수한 세경에 대한 채권의 지급을 구하는 소를 제기하여 2009. 7.3. 위 법원 2009가합2477호로 피고 B는 M에게 173,559,400원 및 이에 대한 지연손해금을 지급하라는 판결이 선고된 사실은 인정되나, 위 인정사실만으로 피고 B가 실제로M에게 판결금을 지급하였다고 보기 어렵고, 달리 이를 인정할 만한 증거도 없으므로,위 양수금을 이 사건 채권에서 공제할 수는 없다.

(C) Therefore, as of November 20, 207, the claim for refund of the remaining purchase price amount of the claim subject to the seizure of the collection order of this case remains 19,445,238,35 won (20,185,651,635 won - 740,413,280 won) (the collection order of this case is limited to granting to the execution creditor the right to collect the claim against the third debtor, and it does not order the third debtor to pay the amount equivalent to the amount of the claim attached to the execution creditor, or set the payment deadline. Thus, the third debtor is not liable for delay of the amount equivalent to the amount of the claim seized to the execution creditor is not from the time when the execution court issued the collection order, but from the date when the execution creditor received the claim for collection from the execution creditor after the issuance of the collection order (see Supreme Court Decision 2010Da4117, Oct. 25, 2012).

C. Sub-decision

Therefore, the defendants jointly and severally succeeded to the intervenor 19,445,238,35 won and 7,310,854,937 won which are the amount cited in the first instance judgment among them, shall be 6% per annum under the Commercial Act from April 14, 2009, the following day after the defendants received a claim for the collection amount, until February 5, 2010, which is the date when the first instance judgment is rendered, which is 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day until the date of full payment, and 12,134,383,418 won (19,45, 2355 won - 7,310,854,937 won). Thus, the defendants shall not be 20% per annum from the next day to the date when the defendants received a claim for the collection amount from the 20th day following the above 20th day after the issuance of the execution creditor 4.20% per annum.

4. Conclusion

Therefore, the succeeding intervenor's claim of this case against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Accordingly, the judgment of the court of first instance shall be modified upon the motion of the succeeding intervenor in the trial prior to the remand. It is so decided as per Disposition.

Judges

Judges of the presiding judge

Judges Park Jong-chul

Judges Croat

Note tin

1) The Defendants asserted that the part concerning KRW 1.8 billion and delay damages claimed by the Plaintiff (Withdrawal) in the first instance trial was already final and conclusive in the purchase-price lawsuit, and thus, res judicata effect of the said final and conclusive judgment has been denied, and that the Plaintiff (Withdrawal) was all of the aforementioned part of KRW 1.8 billion, which became final and conclusive in the entire payment lawsuit. As long as the succeeding intervenor again received large amount of KRW 128 billion in accordance with the decision in lieu of conciliation in the appellate trial, then the succeeding intervenor again sought payment of the said money by the instant lawsuit violates the good faith and is unlawful. However, in the first instance trial prior to remand, the succeeding intervenor did not claim the above part of KRW 1.8 billion, and thus, it is not determined.

2) The assertion of the succeeding intervenor and the succeeding intervenor are not distinguished and considered as the succeeding intervenor’s assertion.

심급 사건

-서울중앙지방법원 2010.2.5.선고 2009가합16457,2009가합124747(공동소송참가)

-서울고등법원 2011.5.19.선고 2010나34946 제21민사부

-서울고등법원 2011.5.19.선고 2010나34946,2010나34953(공동소송참가)

-대법원 2013.7.25.선고 2011다56187,56194

-서울고등법원 2014.1.9.선고 2013나49284,2013나49291(공동소송참가)

서울고등법원 2014.1.9.선고 2013나49284 제22민사부

-대법원 2016.3.24.선고 2014다13280,13297

참조조문

-상법

-상법 제64조

-채무자 회생 및 파산에 관한 법률 제348조 제1항