[추심금][미간행]
In a case where a collection creditor who seized and collected the claim for the construction price against a third party debtor, claims the collection money against the third party debtor based on the collection order, the case holding that the existence of the third party debtor's obligation to prohibit the collection should be determined on the basis of whether it can be acknowledged the identity of both claims, i.e., whether the collection order has the effect of the collection order extends to the claim for recovery as a claim for restitution due to the revocation of fraudulent act, since the claim is the construction price claim under its literal description, while the claim against the third party debtor is merely the equivalent compensation claim as a claim for restitution due to revocation of fraudulent act.
Article 225 of the Civil Execution Act
Plaintiff 1 and one other (Attorney Ansan-sung et al., Counsel for the plaintiff-appellant)
Defendant Incorporated Foundation (Attorney Park Young-young, Counsel for defendant-appellant)
Seoul High Court Decision 2007Na94641 decided June 5, 2008
The judgment below is reversed and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
1. Based on its adopted evidence, the lower court: (a) received a provisional attachment order (hereinafter “instant provisional attachment order”) from the court against the Defendant regarding the claim for construction price of the previous building (hereinafter “the instant construction price claim”) located in the Dong-si, Seoul (hereinafter “the instant building”); (b) the Plaintiffs filed a lawsuit against Nonparty 1 for a monetary claim lawsuit against the lower court; and (c) received each of the instant provisional attachment order (hereinafter “the instant collection order”) from the court to transfer the instant provisional attachment to the provisional attachment; and (d) determined that Nonparty 2 had a claim for construction price related to the instant building; (b) the lower court’s claim for the instant provisional attachment against Nonparty 1 and the value of the instant claim for the instant provisional attachment, which was non-party 2’s claim for restitution, was unlawful on the ground that Nonparty 2 sold the instant building to the Defendant; and (c) the sales contract between Nonparty 2 and the Defendant, the obligee’s obligee, as well as the value of the instant claim for restitution and restitution of the instant building, as it was unlawful.
However, such determination by the court below is difficult to accept for the following reasons.
2. The plaintiffs' claim of this case is the creditor against the non-party 1 and the collection creditor of the collection order of this case against the defendant who is the third debtor of the collection order of this case based on the collection order of this case. As seen earlier, the claim of this case is the construction cost claim of this case, while the claim of this case against the defendant is merely the value compensation claim of this case. Thus, the identity of the claim of this case and the value compensation claim of this case can be recognized, and in other words, the existence of the defendant's obligation of prohibition of collection of this case should be determined depending on whether the validity of the collection order of this case can be seen as affecting the value compensation claim of this case.
Article 225 of the Civil Execution Act provides that "the creditor shall clarify the type and amount of the claim to be attached" in the order of seizure, and in determining the claim to be attached in the order of provisional seizure or the order of seizure and collection, unless there exist any special circumstances, such as the language or expression concerning it is difficult or unclear, it shall be interpreted in accordance with the language or text stated in the order of provisional seizure or of collection, and there is no need to consider the intent within which the creditor has not indicated it. Even according to the facts recognized by the court below, the claim to be attached in the provisional seizure or of provisional seizure or of collection order of this case is indicated as the claim for the construction price of this case. It is difficult to recognize that the type and nature of the claim to be attached and the equivalent value of the claim of this case are not identical to the money claim of this case, and therefore, it is difficult to recognize that the claim of this case is equivalent to the value of the claim to be returned to the original claim of this case due to the alteration of the sale contract of this case and the value of the claim to be returned to the original claim of this case.
On the contrary, the judgment of the court below is erroneous in the misapprehension of legal principles as to the effect of provisional seizure or collection order, which affected the conclusion of the judgment. The defendant's ground of appeal pointing this out is with merit.
4. Therefore, without further examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yang Sung-tae (Presiding Justice)