[채권압류및전부명령][미간행]
Appellant
Other Party
Korea
Seoul Central District Court Order 2006 Taz. 5030 Decided May 2, 2006
The order of the court below is revoked.
The creditor's motion for attachment and assignment order of this case is dismissed.
According to the records, the creditor obtained the execution clause succeeded to the original copy of the payment order in the loan case Seoul Central District Court 2005Da8179 and applied for the attachment and assignment order for part of the debtor's claim against the third debtor. The judicial assistant officer of the court below accepted it on April 12, 2006 and the court below decided to authorize the above order. The debtor was decided to authorize the above order on April 13, 2006 by the court 2006Da20545 and decided to authorize the repayment plan on July 4, 2007. The fact that the above decision to commence the rehabilitation procedure and the list of creditors of the decision to authorize the repayment plan is recognized.
Therefore, a creditor's claim based on the above payment order is an individual rehabilitation claim that occurred due to a cause that occurred prior to the commencement of the individual rehabilitation procedure for the debtor under Article 581 (1) of the Debtor Rehabilitation and Bankruptcy Act, and the debtor's wage claims belong to the individual rehabilitation foundation under Article 580 (1) of the same Act. According to Articles 600 and 615 (3) of the same Act, when a decision to commence the individual rehabilitation procedure is made, compulsory execution against a property that belongs to the individual rehabilitation foundation based on the individual rehabilitation claim stated in the creditor's list is suspended, and when a decision to authorize the repayment plan is made (Provided, That the same shall not apply to cases where a decision to authorize the repayment plan or the repayment plan is otherwise prescribed in the decision to authorize the repayment plan). Thus, the seizure and the assignment order of this case lose its effect by
According to Article 616 of the same Act, a creditor asserts to the effect that an assignment order that was finalized before the commencement of individual rehabilitation procedures with respect to the debtor's wage claim becomes invalid due to labor provided after the repayment plan is authorized, and thus, if interpreting the contrary, the assignment order for wage claim before the repayment plan is authorized is valid. Thus, the above provision applies to an assignment order that was finalized before the commencement of individual rehabilitation procedures, but the attachment and assignment order for the claim of this case was not yet finalized due to the debtor's immediate appeal, and thus, the above assertion is groundless.
Although this Court asserts that the appellate trial has been suspended until now, according to Articles 600 and 615(3) of the same Act, when there exists a decision to commence individual rehabilitation procedures, compulsory execution against the property belonging to the individual rehabilitation foundation based on individual rehabilitation claims listed in the list of creditors should be suspended, and the appellate trial should be suspended until the decision to authorize the repayment plan or to discontinue the individual rehabilitation procedure becomes final and conclusive, so the above argument is groundless.
In addition, since the obligee filed an immediate appeal against the decision to authorize the repayment plan, the obligee asserts that the instant judgment should be suspended until the appellate court rendered a judgment. However, according to Articles 615(3), 618, and 247 of the same Act, when a decision to authorize the repayment plan is made, the compulsory execution based on the individual rehabilitation claim shall lose its validity, regardless of whether such decision becomes final and conclusive. Therefore, the obligee’s assertion is rejected.
Therefore, the order of the court below is revoked, and the creditor's motion for seizure and assignment order of this case is dismissed.
Judges Kim Jong-tae (Presiding Judge)