2017Da282896 ( principal office) Construction Costs

2017Da282902 (Counterclaim) Damage

person

ASEAN General Construction Co., Ltd. (former Trade Name: Cary Construction Co., Ltd.)

A

Seoul High Court Decision 2017Na2003510 (main office), 2017Na decided October 10, 2017

2003534 (Counterclaim) Judgment

6,2018. 28

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal ex officio prior to examining it.

1. If there exists a seizure and collection order, only the claimant may file a lawsuit for performance against the garnishee, and the debtor lose the standing to file a lawsuit for performance against the seized claim. This is an ex officio investigation and determination by the court ex officio, even if there is no party’s assertion, and where the circumstances, such as the standing to file a lawsuit, occur after the conclusion of the fact-finding proceedings, the court shall take such fact into account in the final appeal (see Supreme Court Decision 2016Da27504, Nov. 24, 2016).

Meanwhile, in cases where a third party obligor indicated the amount to be paid to the obligor according to the result of the judgment in the collection order, the claim under the substantive law, which is the subject matter of the relevant lawsuit, is subject to the seizure and collection order (see Supreme Court Decision 2010Da40444, Apr. 28, 201).

2. According to the reasoning of the lower judgment and the record, the Plaintiff’s claim against the Defendant (Counterclaim Defendant; hereinafter “Plaintiff”) against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) was sought from the Defendant for payment of the payment of the price for construction after being awarded a contract for the new construction of the instant building from the Defendant. L in the case of Seoul Central District Court 2017TTTT 115302, October 26, 2017, which was after the closing of argument in the lower judgment, “the Plaintiff was issued a collection order for the amount of KRW 84,343,06, among the claims against the Defendant according to the instant judgment, until the amount was collected KRW 84,343,06, and the seizure and collection order for the said claim was served to the Defendant at that time.

3. Examining the foregoing legal principles in light of the legal principles as seen earlier, only L is the principal lawsuit seeking payment of unpaid construction costs, etc. upon the delivery of the order for seizure and collection to the Defendant, who is the garnishee, and the Plaintiff loses the standing to institute the lawsuit. Therefore, the lower court, on the premise that the Plaintiff has the standing to institute the lawsuit against the Defendant, has become unable to maintain the judgment below, on the premise that the Plaintiff has the standing to institute the lawsuit against the Defendant.

4. Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in