Gyeongwon Co., Ltd. (Law Firm Daeil, Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

Korea Exchange Bank Co., Ltd. (Law Firm Hansung, Attorneys Kang Jong-chul et al., Counsel for the plaintiff-appellant)

November 9, 2007

Suwon District Court Decision 2005Kahap5676 Decided January 31, 2007

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

2. The plaintiff's appeal is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 1 billion won with 20% interest per annum from the day following the service of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff seeking payment is revoked, and the defendant shall pay to the plaintiff 100,628,472 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

3. Purport of incidental appeal;

The text of paragraph (1) is as follows.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1 through Eul evidence 3-1, 2, 1-1, 2 through 3-1, 2-2, and 3-1, 2:

A. On December 12, 2002, the Plaintiff was issued a decision of provisional attachment of claims (hereinafter “decision of provisional attachment of this case”) with the Incheon District Court 2002Kahap2007 against the claims in the separate sheet owned by the non-party company and the non-party company as the claim amount of KRW 2.4979,950,000 against the non-party company and the non-party company against the non-party five financial institutions in order to preserve the execution of the damage claim against the non-party company Echina partnership (the non-party company prior to the alteration: the non-party company; hereinafter referred to as the “non-party company”). The provisional attachment of this case was served on the defendant, the debtor on December 13, 2002.

B. On April 20, 2005, the Plaintiff applied for a payment order against the non-party company for the payment order seeking the payment of the above damage claim under the U.S. High Court Goyang Branch 2005Da3239, the Plaintiff received a payment order with the purport that “the non-party company shall pay to the Plaintiff KRW 2,549,328,600, annual 6% from January 23, 2002 to May 9, 2005, annual 20% from the next day to the full payment order.” The Plaintiff received the payment order with the purport that “the amount equivalent to 20% from January 23, 2002, annual 20% from the next day to the full payment order,” which was issued the attachment and assignment order with the content that additionally seized KRW 545,618,120, and was served to the Defendant on February 27, 2015.

C. On December 13, 2002, when the provisional attachment decision of this case was delivered to the Defendant, the amount of the deposit claim against the Defendant of the non-party company as of December 13, 2002 is KRW 106,302,773 in total, and the amount of the deposit claim against the Defendant against the non-party company was KRW 12,250,205,787 in total ($ 12,170,000 in corporate ordinary loan + interest and delay damages on the above loan + KRW 79,35,068 in Korean won + KRW 850,719 in Korean won). However, the repayment period of the above loan claim became due because the non-party company lost the benefit of time when the provisional attachment decision of this case was sent to the Defendant according to the basic terms and conditions of the bank credit transaction. Around that time, the Defendant set off the above amount of the claim against the Defendant in accordance with the above standardized terms and

D. Before the provisional attachment decision of this case, only three of the savings accounts opened in the Defendant was remaining after the provisional attachment decision of this case. The account number was omitted (hereinafter “the first deposit account”), omitted (hereinafter “the second deposit account”) and omitted (hereinafter “the third deposit account”). Since December 13, 2002, the sum of KRW 34,914 in the first deposit account, the sum of KRW 19,371,507,812 in the second deposit account, and the sum of KRW 1,598 in the third deposit account was additionally deposited, and the sum of KRW 19,371,507,812 in the second deposit account was deposited.

E. At the time of July 1, 2005, the amount of the deposit claim against the Defendant of the non-party company was KRW 371,528,000,000, which was served on the Defendant.

2. Grounds for and determination of the claim

A. The plaintiff's assertion

As the cause of the claim of this case, the decision of provisional seizure of this case applies to all of the deposit claims deposited in the deposit account against the defendant of the non-party company at the time of the provisional seizure decision of this case and after the provisional seizure decision of this case. Since the plaintiff has the effect of seizure upon all of the above claims upon receiving the seizure of this case and the assignment order of this case, the defendant is obligated to pay to the plaintiff 1 million won and damages for delay from among the deposit claims deposited in the deposit account of the non-party company's defendant at the time of provisional seizure of this case

B. Determination

(1) Not only the deposit claims currently deposited in a specific account but also those to be deposited in the future may be subject to provisional seizure. However, whether future deposit claims are subject to provisional seizure or seizure or not shall be determined depending on whether the future deposit claims can be deemed to have included in the indication of claims to be provisionally seized as stated in the provisional seizure or seizure order. In light of the fact that the provisional seizure or seizure of claims directly affects the third party debtor's rights and obligations, the scope of claims subject to provisional seizure or seizure should be objectively determined according to the contents of the provisional seizure or seizure order itself.

(2) According to the above facts, the "Indication of Claim to be Attached" of the provisional seizure decision of this case stated as the object of the provisional seizure as the claim "amount until the claim amount is reached in the order of the following deposits among the following deposit claims that the debtor holds against each third party debtor". The next type of deposit claims to be attached is successively deposited in the order of ordinary deposits, current accounts, time deposits, installment deposits, and special deposits. Accordingly, it appears that the provisional seizure order of this case means the provisional seizure of the claim amount by the order of the deposit claims based on the deposit balance at the time of delivery of the provisional seizure decision of this case on its face according to the order of the deposit claims listed above.

(3) If the claim which is the object of provisional seizure is indicated as "amount until the above claim amount is reached" among the following deposit claims against each third party obligor, the provisional seizure ruling becomes effective only to deposit claims deposited after the provisional seizure ruling as alleged by the plaintiff. It is objectively apparent in the text of the provisional seizure ruling in this case that the effect of the provisional seizure ruling is excessive in the order of ordinary deposit, current deposit, term deposit, fixed term deposit, and extraordinary deposit. There is room for controversy as to whether the provisional seizure ruling in this case has effect on the deposit amount if additional deposit money is deposited after the provisional seizure ruling, it is assumed that the provisional seizure claim amount is 50,000 won, and there is a balance of deposit amount 10,000 won in each of the above deposits against each third party obligor until the provisional seizure ruling has effect on the deposit amount as stated in the order of the above provisional seizure order. It is too difficult to interpret that the above provisional seizure ruling has effect on each of the above deposit claims until the provisional seizure ruling has effect on the deposit amount as stated in the order of the above provisional seizure order.

(4) On this issue, the Plaintiff asserted that the financial practice prohibiting payment of future deposit claims has been carried out in a long-term repeated manner in the case where the provisional seizure order such as this case's provisional seizure order has been made. Thus, this is hard to recognize that the Defendant, one of the seven commercial banks in Korea, has no other evidence to acknowledge that the above provision has been formed as alleged by the Plaintiff in the provisional seizure order as stated in the decision of this case's provisional seizure order, since it itself was formed into one commercial customary law with the normative meaning due to the legal conviction and awareness of the employees concerned. Thus, the Defendant's assertion that "amount until the above claim amount has been made according to the following order among the following deposit claims that the obligor has against each third party obligor," should be included in the amount of the above claim amount after the provisional seizure order of this case. However, according to the evidence Nos. 24 and 28 of this case's evidence, there is no other evidence to acknowledge it. However, according to the evidence No. 8 of this case's provisional seizure order, the Defendant's assertion is without merit.

(5) Therefore, the effect of the instant provisional attachment decision and the instant attachment and assignment order shall extend to the non-party company's deposit claims against the defendant existing at the time of each decision or order's delivery to the defendant, and according to the facts acknowledged in the "basic facts", at the time of the instant provisional attachment decision, the deposit claims against the defendant of the non-party company were extinguished by the offset against the defendant's non-party company. The amount of the non-party company's deposit claims against the defendant at the time of July 1, 2005 when the instant provisional attachment and assignment order was delivered to the defendant was KRW 371,528, which was the total amount of deposit claims against the non-party company against the defendant as of July 1, 2005, and thus, barring any special circumstances, the defendant is obligated to pay to the plaintiff the above KRW 371,528 and delay damages pursuant

3. Defendant’s assertion and judgment

A. Non-existence and judgment of the underlying claim

First, since the defendant asserts that the plaintiff's claim against the non-party company did not exist, so long as the seizure and assignment order based on an executory title was lawfully made, the seized claim shall be naturally transferred to the executory creditor within the scope of the executory claim. Thus, even if the executory claim has already been extinguished or exceeds the actual amount of debt, it does not affect the seizure and assignment order, and the third debtor cannot assert the non-existence of the executory claim (see Supreme Court Decision 2004Da6542, May 28, 2004, etc.). The defendant's above assertion is without merit without further review.

B. Offset and judgment

Since the defendant's claim for loans against the non-party company is proved to offset the amount equal to that of the plaintiff's deposit claim against the non-party company, which is the entire claim against the non-party company, which is the whole claim of the above 2. B., and considering the whole purport of the argument in the statement No. 1-2, No. 10-1, No. 10-2, and No. 10-2, the defendant lent the loan to the non-party company on July 31, 2003 as of March 5, 2004. On February 18, 2004, the above amount of KRW 7,208,368 out of the above amount was repaid from the non-party company to the non-party company, which is the whole claim of the above loan amount of KRW 192,791,632 (= 200 million,7,208,368) and the plaintiff's claim against the non-party company against the non-party company was delivered to the above defendant's claim against the non-party company.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance different conclusions, the defendant's incidental appeal shall be accepted, the part against the defendant in the judgment of the court of first instance shall be revoked, the plaintiff's claim corresponding to that part shall be dismissed, and the plaintiff's appeal shall be dismissed. It is so decided as per Disposition.

[Attachment]

Judges Park Hong-woo (Presiding Judge)