[2] Where the effect of demand for distribution is recognized even though the seizure and provisional seizure order issued upon request by another creditor was served on the garnishee after the third debtor's deposit of execution, and whether such a legal principle also applies to mixed deposits (affirmative)

[2] Even if a seizure and provisional seizure order issued upon request by another creditor was served on a third debtor after the third debtor's execution deposit, the execution court could have known the same facts not later than the reporting date of the reason for deposit, which is the completion date of the request for distribution, and in cases where such creditor has a right to preferential reimbursement or an executory exemplification pursuant to the law, and in cases where the execution court did not know the same facts by the time when the report of reason for deposit was filed, the validity of the demand for distribution may not be recognized even if such seizure and provisional seizure order was served on the third debtor by the time when the report of reason for deposit was filed. Furthermore, this legal principle applies to the so-called mixed deposit made by mixing the execution deposit under the Civil Execution Act with the repayment deposit under the Civil Act and the so-called mixed deposit made by the execution court.

1. A garnishee’s seizure and provisional seizure order is void when the garnishee deposits the execution pursuant to the provisions of Article 248(1) of the Civil Execution Act or Articles 291 and 248(1) of the Civil Execution Act on the ground of the seizure and provisional seizure. Meanwhile, a seizure and provisional seizure order on the garnishee takes effect upon the delivery to the garnishee (Articles 227(3) and 291 of the Civil Execution Act), and even if the seizure and provisional seizure order is issued upon the third obligor’s deposit before the third obligor’s deposit, if it was served to the third obligor after the third obligor’s deposit was made, such seizure and provisional seizure order is effective on the claims already extinguished due to the execution deposit (see, e.g., Supreme Court Decision 2008Da59391, Nov. 27, 2008). Meanwhile, even if other obligee’s request for seizure and provisional seizure order was issued upon the third obligor’s deposit, if it is acknowledged that the third obligor’s deposit and provisional seizure order had an executor’s right to demand for distribution after the deposit.

2. According to the reasoning of the judgment below, Defendant Geum River Corporation received a provisional attachment order of KRW 20,425,140 against Hyundai Elevator Corporation (hereinafter “former elevator”), with the claim amount of the construction cost claims for Hyundai Elevator Corporation (hereinafter “the instant claims”), and the provisional attachment order of KRW 3,00 on June 19, 2013 was served on Hyundai Elevator. The provisional attachment order of KRW 47,581,050 was issued with the provisional attachment order of KRW 47,581,050 on the instant claims. The provisional attachment order was served on Hyundai Elevator on July 10, 2013, and the notification of the assignment of the instant claims to the Plaintiff was delivered to the Seoul High Court on August 18, 2013. The Plaintiff received a provisional attachment order of KRW 20,000,000 from the Seoul High Court on the grounds that the provisional attachment order of KRW 3,000,000,000,000 for the instant claims to the Plaintiff.

Examining these facts in light of the legal principles as seen earlier, the seizure and collection order of this case is not only after the transfer of the mineral source elevator, but also after the completion of the claim of this case due to the mixed deposit of the modern elevator, and thus, it is not effective to seize it. In addition, even if the service of the modern elevator of this case was made prior to the report by the Incheon District Court’s Busan District Court’s deposit officer, the execution court could not know the same fact until the time of the report on the above reason. Thus, the validity of the demand for distribution cannot be recognized.

Therefore, the judgment of the court below that makes a conclusion is justifiable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the withdrawal of the assignment of claims or the expression

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)