Plaintiff (Law Firm Hosung, Attorneys Im Young-young et al., Counsel for the plaintiff-appellant)

C&T Co., Ltd and three others (Law Firm LLC et al., Counsel for the plaintiff-appellant)

May 19, 2016

1. On August 28, 2015, with respect to the distribution procedure case of Seoul Southern District Court 2013ta-Ba2293, the dividend amount of 24,94,469 won for Samju Co., Ltd. among the distribution schedule prepared by the above court on August 28, 2015, 8,603,617 won; the dividend amount of 211,939,020 won for the defendant Samju Co., Ltd.; the dividend amount of 72,953,802 won for the defendant Korea; the dividend amount of 283,804,806 won for the defendant Korea; the dividend amount of 5,007,219 won for the defendant Co., Ltd.; the dividend amount of 102,856,383 won for the plaintiff to the plaintiff; and the amount of 4629,398 won for the defendant Co., Ltd. shall be corrected to 97,6398 respectively.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the litigation costs, 5% is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

With respect to the distribution procedures (hereinafter “instant distribution procedures”) case of Seoul Southern District Court 2013ta-2293 (hereinafter “Seoul Southern District Court”), the amount of dividends against the Defendants among the distribution schedule prepared by the said court on August 28, 2015 shall be deleted, and KRW 102,856,383 shall be changed to KRW 449,048,236.

1. Basic facts

A. The relationship between the parties

The Plaintiff and the Defendants, as creditors of the NAEP Co., Ltd. (hereinafter referred to as “NAEP”), are those who seized or provisionally seized the claims for the payment of goods held by the NAEP Co., Ltd. (hereinafter referred to as “Korean NAEP”) against the NAEP Co., Ltd. (hereinafter referred to as “Korean NAEP”).

B. Seizure, etc. of the instant claim

As to the claim for the amount of goods of KRW 681,136,516 (hereinafter “the claim of this case”) against the Republic of Korea Ecuador, the provisional attachment, seizure, assignment of claims, etc. were continued as follows, and the Republic of Korea Ecuador deposited the amount of the above obligation with the Seoul Southern District Court No. 4719, Sept. 30, 2013 on the ground of competition of seizure, etc. on September 30, 2013.

1) Determination on provisional seizure of claims (the amount of claims 447,629,398 won, and the third obligor around April 17, 2013; hereinafter “decision on provisional seizure of claims”) by Suwon District Court Branch 2013Kadan621 (hereinafter “decision on provisional seizure of this case”).

2) The Seoul Southern District Court 2013Kadan3401 Decision on the provisional seizure of claim [the balance of claim 50,660,00 won, claim amount of 50,660,00 won, and third debtor around April 19, 2013]

3) Seoul Central District Court Decision 2013Kadan1606 decided on provisional seizure of claims (the claim amounted to Nonparty 8, Nonparty 102,085,958, and the third obligor around April 30, 2013)

4) Seoul Central District Court Decision 2013Kadan46634 decided on the provisional seizure of claims (the creditor, Nonparty 9, the claimed amount of KRW 80,000,000, and the third debtor around May 13, 2013)

5) Seoul Southern District Court 2013Tari-9258 Claim Seizure and collection order [the claim amount of 30,000,000 won, and the third debtor around May 13, 2013]

6) The assignment of claims, dated December 28, 2012, stating that the assignment of claims amounting to KRW 1,250,000,000 among the claims of this case that are transferred by assignment of claims and Nonparty 1, the assignee of claims (hereinafter “the assignment of claims of this case”) reaches the debtor Yoot in Korea on May 13, 2013; hereinafter “the assignment of claims”).

7) Seoul Southern District Court Decision 2013Kadan70504 decided on the provisional seizure of claims [the claim amount of 110,921,250 won, and the third debtor around May 15, 2013]

8) Attachment of claims by the director of the Geumcheon Tax Office on May 7, 2013 (the creditor's Republic of Korea, the amount of credit 211,939,020 won, and the third debtor on May 15, 2013)

9) Seoul Central District Court 2013Kadan4158 Decision on provisional seizure of claims [the defendant Technology Credit Guarantee Fund (hereinafter referred to as the "Defendant Technology Credit Guarantee Fund"), the claimed amount of 2,176,00,000 won, and the third debtor around May 22, 2013]

10) Seoul Southern District Court 2013TTTTT 2013TT 9775 Claim seizure and collection order (the creditor’s non-party 1, the claimed amount of KRW 500,000,000, and the third debtor around May 28, 2013)

11) An order for seizure and collection (Provided, That the amount claimed shall be extended to KRW 456,459,347, and the third obligor shall reach the third obligor around May 30, 2013; hereinafter “order for seizure and collection of this case”).

12) The Daejeon District Court Branch Decision 2013Kadan2165 decided on the provisional seizure of claims [the creditor agricultural company Dolsan Co., Ltd. (hereinafter “Defendant Dolsan”), the claimed amount of 22,221,200 won, and the third debtor around June 25, 2013]

(c) Preparation of distribution schedule;

In the instant distribution procedure regarding the above deposit, the distribution schedule was prepared by the Defendant Republic of Korea, the highest priority seizure holder, to receive the full amount of the claim amount of KRW 211,939,020, KRW 102,856,383, the Plaintiff, the person having the right to seize and collect the above deposit amount of KRW 11,415,484, Nonparty 8, the person having the right to seize and collect the provisional seizure, KRW 23,003,566, Nonparty 9, the person having the right to seize provisional seizure, KRW 18,026,820, KRW 24,994,468, Defendant Sam-do, the person having the right to seize provisional seizure, KRW 283,804,806, the person having the right to request the distribution of KRW 5,07,219, respectively (the remaining dividend amount of the claim for provisional seizure in this case is withdrawn by Nonparty 1, etc.).

D. The plaintiff's objection to the distribution and the filing of the lawsuit of this case

The Plaintiff appeared on the aforementioned date of distribution, and raised an objection against the total amount of claims and the amount of dividends of the Defendants, and filed a lawsuit of demurrer against the distribution of this case within seven days thereafter.

E. Return of the claim of this case to the NANP

1) As described in the above B-6, the Defendant’s New Technology Report filed a lawsuit seeking revocation of the fraudulent act with the Seoul Central District Court 2014Gahap530001, asserting that the transfer of the instant claim to Nonparty 1 constitutes a fraudulent act and ought to be revoked. In the instant distribution procedure, Nonparty 1 ought to transfer the right to claim for payment of deposit money to the Republic of Korea against the Republic of Korea, thereby filing a lawsuit seeking revocation of the fraudulent act.

2) However, Nonparty 1: (a) jointly and severally guaranteed the debt borrowed to Nonparty 3 and Nonparty 2 with Nonparty 1; and (b) was transferred to Nonparty 1 as a security for the said joint and several liability; (c) Nonparty 1, the principal debtor, etc., notified the NApl to the effect that the instant claim is cancelled by content-certified mail on June 8, 2015; and (d) around June 9, 2015, the notice was sent to the NAV by content-certified mail, and the notice was sent to the Republic of Korea around June 10, 2015.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 8 (including each number in case where there are additional numbers), Eul evidence 1, 2 and 3, Eul evidence 1-1 to 4, and the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

1) If the obligor disposes of the claim before the seizure of the claim takes effect, even if there is a creditor who first attached the claim and it is impossible to oppose the creditor, the effect of the disposition may be set up against the creditor participating in the execution after the disposition. Thus, if the obligor satisfies the requirements for setting up against the assignment of claim by notification with a fixed date, etc. after the transfer of the claim subject to seizure or provisional seizure, even if another creditor of the obligor satisfies the requirements for setting up against the assignment of claim by notification with a fixed date, etc., the seizure or provisional seizure has no effect as it does not exist at the time of the seizure or provisional seizure, and as such, other creditors cannot participate in the execution procedure following the seizure, etc. (see Supreme Court Decision 2010Da57213, Oct. 28, 2010, etc.).

2) At the time when the Defendants’ decision on the seizure or provisional seizure of the claims of this case reached the Republic of Korea, the garnishee, the claim of this case had already been transferred from NAEf to Nonparty 1, and the fact that the transferor, the transferor, completed the notification of the assignment of claims to NAE. As seen earlier, the Defendants’ decision on the seizure or provisional seizure of claims is null and void.

3) 따라서 배당법원이, 피고들이 이 사건 채권의 압류 내지 가압류권자인 것을 전제로 합계 525,745,514원(= 피고 삼우티디 24,994,469원 + 피고 대한민국 211,939,020원 + 피고 기술신보 283,804,806원 + 피고 도울농산 5,007,219원)을 이 사건 배당표와 같이 각 배당한 것은 잘못이므로, 이 사건 배당표 중 원고에 대한 배당액 102,856,383원을 이 사건 가압류결정상 원고의 청구금액인 447,629,398원으로 경정하고, 원고에 대한 추가 배당부분인 344,773,015원(= 447,629,398원 - 102,856,383원) 만큼을 피고들의 각 배당액에서 안분하여 삭제하면(원고는 피고들의 각 배당액 중 어느 부분을 삭제할 것인지 여부를 특정하고 있지 아니하다), 피고 삼우티디에 대한 배당액 24,994,469원을 8,603,617원[= 24,994,469원 - (344,773,015원 × 24,994,469원/525,745,514원), 원 미만은 버림, 이하 같다]으로, 피고 대한민국에 대한 배당액 211,939,020원을 72,953,802원[= 211,939,020원 - (344,773,015원 × 211,939,020원/525,745,514원)]으로, 피고 기술신보에 대한 배당액 283,804,806원을 97,691,494원[= 283,804,806원 - (344,773,015원 × 283,804,806원/525,745,514원)]으로, 피고 도울농산에 대한 배당액 5,007,219원을 1,723,589원[= 5,007,219원 - (344,773,015원 × 5,007,219원/525,745,514원)]으로 각 경정하여야 한다[원고는, 이 사건 가압류결정 이후 위 가압류를 본압류로 이전하는 이 사건 채권압류 및 추심명령을 받으면서 청구금액을 456,459,347원으로 확장하였는바, 이 사건 배당액의 경정은 위 확장된 청구금액을 기준으로 하여야 하므로 원고에 대한 배당액을 449,048,236원으로 경정하고 그 추가부분만큼을 피고들에 대한 배당액에서 삭제하여야 한다고 주장하나, 원고가 이 사건 채권압류 및 추심명령을 받을 당시 이 사건 채권은 이미 네오퍼플로부터 소외 1에게 양도되었고, 양도인인 네오퍼플이 한국야쿠르트에게 그 채권양도통지까지 마친 사실은 앞서 본 바와 같으므로, 이 사건 채권압류 및 추심명령 중에서 이 사건 가압류를 본압류로 이전하는 부분을 초과하는 압류명령 부분은 존재하지 않는 채권에 대하여 발령받은 것으로서 무효라고 할 것이어서, 원고의 위 주장은 이유 없다].

B. Determination as to the defendants' assertion

1) The defendants' assertion

B. On June 10, 2015, the Plaintiff of the instant claim, and Nonparty 1, the assignee, notified the rescission of the agreement on the instant transfer of claim and the notification thereof to the Republic of Korea Yuart, which is the garnishee. As such, the validity of the instant transfer of claim was retroactively invalidated due to the cancellation of the agreement, or the instant transfer of claim was invalidated by Nonparty 1, who acquired the instant claim through the instant transfer of claim through the instant transfer of claim, renounced the instant transfer of claim, which is a collateral, and thereby, the instant transfer of claim was also invalidated. As such, the instant transfer of claim, which was made by the Defendants, is valid, and the attachment and provisional attachment of the instant claim is also lawful.

2) Determination

A) If at the time of the creditor’s seizure or provisional seizure, the claims subject to seizure already transferred from the debtor to the transferee of the claim, barring such circumstances as the assignment of claims becomes null and void from the beginning, the creditors’ seizure and provisional seizure order is all null and void, and thus, the collection order based thereon is also null and void. Thus, the mere fact that the debtor, the transferor of claims, cancels or withdraws the assignment contract of claims against the claims subject to seizure with the consent of the transferee of claims cannot be deemed null and void or that the provisional seizure of claims is valid (see, e.g., Supreme Court Decision 2010Da57213, 57220, Oct. 28, 2010).

B) As asserted by the Defendants, even if the instant claim assignment contract was rescinded after the attachment and provisional attachment of the instant claim made by the Defendants, or Nonparty 1 renounced the instant claim, which is collateral, and returned to the NAEf., the instant claim was returned to the NAEf., the Defendants’ claim attachment and provisional attachment order, which were issued for non-existent claims, cannot be deemed as having been restored to the NAEf. due to the cancellation of the said agreement. Thus, the Defendants’ claim 1) is without merit.

3. Conclusion

Therefore, each claim against the Defendants against the Plaintiff is justified within the scope of the above recognition, and each claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Young-young (Presiding Judge)

Note 1) Busan District Court’s Dong Branch Branch Decision 201Gahap2974 decided Feb. 21, 2013