Seoul High Court Decision 200Na1448 delivered on January 1, 200

Suwon-si (Attorney Kim Jong-jin, Counsel for the defendant-appellant)

May 6, 2010

Suwon District Court Decision 2009Kahap12996 Decided November 26, 2009

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 188,178,00 won with 5% interest per annum from the delivery date of the complaint of this case to the rendering date of the judgment of the court of first instance, and 20% interest per annum from the next day to the full payment date.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: “The Defendant is obliged to return 91,707,000 won in the second sale contract amount with unjust enrichment” from “the unjust enrichment by the Defendant” to “the Defendant is obligated to return 91,707,000 won in the second sale contract amount with unjust enrichment” under the fourth below the reasoning for the judgment of the court of first instance; and thereafter, it is consistent with the reasoning for the judgment of the court of first instance, except for adding the following judgments as to the matters alleged in the trial, and thus, it is cited in accordance with

2. Additional matters to be determined;

“3. Determination on the legitimacy of the instant lawsuit

A. The parties' assertion

On January 4, 2008, which was prior to the filing of the instant lawsuit, the Defendant asserted that the Nonparty was not qualified as the party to the instant lawsuit, since the Nonparty received a seizure and collection order as to the claim for refund of the purchase price, which was paid by designating the Plaintiff as the debtor and the Defendant as the third debtor, and received by the Defendant, who was the third debtor at that time, to purchase the public property of this case against the Defendant. However, the Plaintiff asserted that the above seizure and collection order, which was received by the Nonparty, is null and void or likely to be cancelled.

B. Determination

Of the claim for refund of the purchase price paid by the Plaintiff to the Defendant, the Nonparty: (a) received a seizure and collection order on January 4, 2008 and served on the Defendant, the garnishee, who was the third obligor on January 9, 2008; and (b) confirmed on January 1, 2008, the fact that the above seizure and collection order was served on the Defendant, the third obligor, is significant in this court; or (c) can be recognized by the statement in the evidence No. 5.

If there exists a seizure and collection order as to the claim, only the collection creditor may file a lawsuit for performance against the third debtor, and the debtor shall lose the standing to file a lawsuit for performance against the claim subject to seizure (see, e.g., Supreme Court Decisions 9Da2388, Apr. 11, 2000; 2007Da60417, Sept. 25, 2008); as seen in the above cited part, the first sale contract amount of KRW 96,471,00 for the public property of this case was already reverted to the defendant by the defendant's declaration of intention of cancellation on Dec. 31, 200 for the reason of the plaintiff's default, and there is no right to claim the plaintiff. The above seizure and collection order under the name of the third debtor had already been delivered to the defendant who is the third debtor, and the plaintiff's second sale contract amount and sales contract amount, KRW 91,707,000, Jan. 9, 2008.

Therefore, since the lawsuit of this case is unlawful as a lawsuit brought by a person who is not qualified as a party, the defendant's assertion is reasonable, and there is no evidence to acknowledge that the above seizure and collection order were invalid or cancelled, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the lawsuit of this case is dismissed in an unlawful manner, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed as per Disposition.

Judges Sung-mun (Presiding Judge)