2018Da284929 Collections

person

A Co., Ltd. (formerly: B)

Attorney Choi Jong-soo, Counsel for the defendant-appellant

C

Attorney Lee Jae-chul, Counsel for the defendant-appellant

Suwon District Court Decision 2018Na59274 Decided October 12, 2018

March 14, 2019

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Suwon District Court. The plaintiff's appeal is dismissed.

1. Case history

Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On June 24, 2010, E operated a gas station by leasing the lease deposit amounting to KRW 130 million from July 1, 2010 to June 30, 2012, with the authorization, permission, etc. related to the gas station located in Seo-gu Incheon, Incheon, which is owned by the Defendant, from the Defendant, and operating the gas station by setting the lease deposit amount to KRW 130 million from July 1, 2010 to June 30, and the monthly rent of KRW 8.8 million after the extension of the lease term.

B. The Plaintiff sold transit to E by June 30, 2013 and has a claim for oil price of KRW 94,052,000.

C. On November 20, 2013, D agreed to take over the status of the above lessee from E, and accordingly, D entered into a lease contract with the Defendant on the condition that the above gas station is KRW 130 million for the lease deposit and the period from November 26, 2013 to November 25, 2015, and operated the gas station (hereinafter “instant lease contract”) with the Defendant on the condition that the rent is KRW 6.6 million for the monthly rent, and the lease deposit was to be substituted by the lease deposit paid by E.

D. The Plaintiff filed a lawsuit seeking revocation of fraudulent act against D as Incheon District Court Decision 2013Kadan9965. On August 25, 2015, the said court revoked the lease transfer agreement on the instant building concluded between D and E on November 20, 2013 within the scope of KRW 94,052,00. D, under the instant lease agreement, assigned the lease deposit claim against the Defendant to E within the scope of KRW 94,052,00, and notified the Defendant of the assignment of the claim, and the said judgment became final and conclusive on September 12, 2015 (hereinafter referred to as the “prior judgment”).

E. D made an agreement with the Defendant on June 3, 2015 to waive the claim for the return of lease deposit under the instant lease agreement with a view to compensating the Defendant’s damages caused by the illegal act, such as sales below the fixed quantity at the said gas station (hereinafter “instant agreement to waive the claim”).

F. On July 2018, E transferred “E” to the Plaintiff KRW 94,052,00, out of the lease deposit return claims against the Defendant transferred by D by the preceding judgment of this case.

2. The judgment of the court below

The Plaintiff filed the instant lawsuit claiming that “D and the Defendant constitute a fraudulent act, and D shall be in the status of the beneficiary and the Defendant. The Plaintiff received KRW 94,052,00 from E to the claim for the refund of the lease deposit under the instant lease agreement, and succeeded to E as the obligee.” The Plaintiff revoked the instant agreement within the scope of KRW 94,052,00,00, and the Defendant shall pay the Plaintiff the amount calculated at the rate of KRW 94,052,00 and KRW 5% per annum from the day following the day when the judgment became final to the day of full payment.”

The court below accepted the part of the plaintiff's claim on the revocation of the fraudulent act on the ground that the plaintiff's claim for the return of the lease deposit transferred from E can be the preserved claim in the lawsuit for revocation of the fraudulent act in this case, and even if the creditor's claim was transferred after the fraudulent act, the transferee can exercise the creditor's right of revocation, and thus the plaintiff is entitled to seek revocation of the fraudulent act as the assignee of the above preserved claim in this case.

3. Judgment of the Supreme Court

A. In order to establish the obligee’s right of revocation as to the Defendant’s grounds of appeal, the obligee must have a preserved claim against the obligor. However, even according to the Plaintiff’s assertion or the judgment of the court below, the preserved claim against the fraudulent act in this case is KRW 94,052,00 among the claims to return the lease deposit against the Defendant under the instant lease agreement that was transferred to the Plaintiff around July 2018, and it is evident that the obligor is the Defendant, not D, and the Plaintiff is the beneficiary. Thus, the Plaintiff’s claim to return the lease deposit transferred from E cannot be the preserved claim against the lawsuit seeking the revocation of the fraudulent act in this case.

Nevertheless, the lower court, solely on the grounds indicated in its reasoning, deemed that the preserved claim exists and cited the part of revoking the fraudulent act among the Plaintiff’s claims. In so determining, the lower court erred by misapprehending the legal doctrine on the preserved claim by obligee, thereby adversely affecting the conclusion of the judgment. Accordingly,

B. In light of the records as to the Plaintiff’s grounds of appeal, the Plaintiff clearly indicated at the first instance court and the lower court that “the cause of the claim for monetary payment is compensation for the value following the revocation of the fraudulent act.” However, as seen earlier, the secured claim cannot be deemed to exist in the lawsuit seeking revocation of the fraudulent act, and thus, the claim for restitution premised on the revocation of the fraudulent act does not have any further reasons.

Therefore, while dismissing the Plaintiff’s claim for payment of money, the reasons cited by the lower court are inappropriate, the lower court’s conclusion as to this part is acceptable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court erred by misapprehending the legal doctrine on restitution due

There was no error.

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part against the Defendant is reversed and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

2. Judgment of the presiding judge

Chief Justice Kim Jong-il

Justices Lee Dong-won

Justices Kim Gin-soo