Plaintiff (Law Firm current, Attorneys Kim Gi-sik, Counsel for the plaintiff-appellant)

Young New Technology Co., Ltd. (Law Firm Gyeyangyang, Attorney Ansan-jin, Counsel for defendant-appellant)

October 11, 2016

Seoul Northern District Court Decision 2014Da133662 Decided October 8, 2015

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 1) 33,586,205 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is that “3,589,205 won” under the second part of the judgment of the court of first instance is “3,586,205 won” and the second part is as stated in the reasoning of the judgment of the court of first instance except for the second part as follows. Thus, this Court shall accept it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○ Parts of the mix

B. Determination

Since a payment order in an undetermined state cannot become an effective executive title, the attachment and assignment order based on this order is null and void, and the third obligor may refuse to demand the performance of the obligee who received the assignment order on such ground.

Meanwhile, with respect to a claim aimed at paying a certain amount of money and other substitutes or securities, the provisions concerning a lawsuit are applied mutatis mutandis to the procedure of special litigation for allowing a creditor to obtain title in a simplified and speedy manner (Article 462 of the Civil Procedure Act), and to the extent not contrary to its nature (Article 464 of the Civil Procedure Act). Therefore, where a cause for interrupting a lawsuit arises within the objection period after the delivery of payment order, Article 247(2) of the Civil Procedure Act shall apply mutatis mutandis, and the progress of the objection period shall be suspended (see Supreme Court Decision 2012Da7012, Nov. 15, 2012).

In addition, in a lawsuit on the property of a corporation undergoing rehabilitation procedures, a custodian who is not a representative director is a party to the lawsuit (see Article 78(2) of the Debtor Rehabilitation and Bankruptcy Act), but if the decision to discontinue rehabilitation procedures becomes final and conclusive, the trustee’s authority is extinguished if the decision to discontinue rehabilitation procedures becomes effective, and since the representative director of the corporation, who is the debtor, restores the right to manage the property of the corporation to perform and dispose of the property of the corporation, the litigation procedures performed as a party by the custodian are suspended automatically and the debtor corporation

In light of the aforementioned legal principles and the facts acknowledged as seen earlier, since the decision to discontinue the rehabilitation procedures was finalized on May 9, 2013, the day before the order of this case was served to Nonparty 1, the joint manager of the members system, the procedure for the payment order to the members system was suspended at the time the order of this case became final and conclusive, and as long as there is no evidence to prove that the members system or the plaintiff was taken over in the above demand procedure, the payment order of this case was suspended and is in an undetermined state (see Supreme Court Decision 2012Da7012, Nov. 15, 2012). Therefore, the assignment order of this case based on the payment order of this case, which is still final and conclusive, shall be null and void, and the defendant, the third debtor of the assignment order of this case, who is the defendant, can refuse it against the entire payment claim based on the assignment order of this case. Ultimately, the defendant's assertion pointing this out has merit, and the plaintiff's assertion based on the premise that this case became final and conclusive.

The plaintiff invoked Supreme Court Decision 95Da15667 delivered on February 13, 1998, and the non-party 1, the co-manager of the crew system, did not raise an objection against the order even after the non-party 1, the co-manager of the crew system, received the payment order of this case. Thus, the service on the non-party 1 of the payment order of this case is lawful and therefore the payment order of this case became final and conclusive. However, as seen earlier, once the party to the payment order of this case did not take lawful steps after May 9, 2013, the date on which the decision to discontinue the rehabilitation order of this case became final and conclusive, the period for raising an objection against the payment order of this case shall be deemed suspended. In addition, the above judgment is not appropriate as to the seizure and the assignment order of this case, and it is not appropriate to invoke the death of the deceased person as the third debtor. Thus, the plaintiff's above assertion on a different premise is

2. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Il-con (Presiding Justice)

Note 1) The phrase “3,589,205 won” written in the written complaint appears to be a clerical error in the “33,586,205 won”.

2) Since only a custodian has the right to perform a lawsuit on behalf of a stock company, which is the subject of legal relationship, pursuant to the provisions of law, this constitutes a legal entity in charge of legal proceedings under the

3) In addition, the service of the instant payment order to Nonparty 1, a joint management which was conducted during the interruption of litigation procedures, is not effective as it is illegal service.