[연금][집35(3)민,361;공1988.2.15.(818),340]
Where provisional seizure of claims is concurrent, the effect of performance made by the garnishee to the whole creditor by the garnishee.
In a case where provisional seizure against a claim is concurrent and one of them is transferred to the original seizure, and the other is ordered to seize and collect the claim, the performance made by the third-party obligor to the entire creditor in violation of Article 561(1) of the Civil Procedure Act is the case where the third-party obligor has discharged to his creditor in violation of Article 561(1) of the Civil Procedure Act. Thus, in a case where the original claim seizure (including provisional seizure) is concurrent with one of the execution creditors, the assignment order made to one of the execution creditors is null and void, but in a case where the third-party obligor has effected the performance to the creditor with no fault in good faith, it is valid as the performance to the quasi-Possessor of the claim, and in a case where the performance is made to the creditor in accordance with an invalid assignment order, it is the fruits of duty.
Articles 561 and 564 of the Civil Procedure Act, Article 470 of the Civil Act
Supreme Court Decision 78Da1292 Decided September 30, 1980
Plaintiff
Korea
Seoul High Court Decision 87Na232 delivered on June 30, 1987
1. The case shall be reversed and remanded to the Seoul High Court, on October 24, 1986, the part against the defendant ordering the plaintiff to pay in excess of the amount equivalent to 7 million won per annum from October 24, 1986 to the full payment rate of 25 percent per annum.
2. The defendant's remaining appeals are dismissed, and the costs of the appeal are assessed against the defendant.
As to the Grounds of Appeal:
According to the judgment of the court below, the plaintiff completed military service on February 20, 1986. 2. 30, 1986. 8. 2. 8. 8. 1. 1. 3. 1. 3. 1. 1. 3. 1. 1. 3. 1. 1. 8, the plaintiff's provisional attachment order on the above provisional attachment order on the above provisional attachment order on the above provisional attachment order on the above provisional attachment order on the 19. 3. 1. 3. 1. 3. 3. 1, the plaintiff's provisional attachment order on the above provisional attachment order on the above provisional attachment order on the 19. 1. 3. 3. 1, the provisional attachment order on the above provisional attachment order on the above provisional attachment order on the 19. 3. 3. 1, the plaintiff's provisional attachment order on the above provisional attachment order on the above provisional attachment order on the above provisional attachment order on the 10. 20. 16.
Based on the above facts, the court below held that the plaintiff's above attachment and assignment order was issued in violation of Article 7 of the Military Pension Act and null and void. Thus, the defendant's assertion that the defendant sought payment of KRW 13,500,000 which was not yet paid to the defendant. Even if the above assignment order is null and void, the defendant's claim that the defendant's non-party 1's non-party 1's non-party 6,50,000 won is valid payment. The defendant's claim that the provisional attachment against the above 2,3's claim was already concurrent when the assignment order was issued on March 3, 1986, and that the right to receive a lump sum retirement cannot be seized because it was issued in violation of the above provision, and thus, the above attachment and assignment order is null and void. The defendant's claim that the above attachment and assignment order was not valid because the above non-party 1's non-party 1's non-party 60,500,000 won was paid under the court's attachment and assignment order was not valid.
However, as in the case of this case, in case where one of the parties is concurrently subject to the attachment and collection order prior to the issuance of the attachment and collection order which one of them transferred to the original attachment, and the third party is ordered, the performance made by the garnishee to the entire obligee is prohibited under Article 561(1) (or Articles 707 and 561(1) of the Civil Procedure Act) of the Civil Procedure Act, but the third party obligor in violation of the prohibition of payment to the third party obligor was performed to his obligee, and thus, the third party obligor is not entitled to claim the extinguishment of the claim under Article 561(1) (or Article 707, Article 561(1) of the Civil Procedure Act (or Article 561(1)) of the Civil Procedure Act against the other party obligee. However, in relation to the plaintiff of this case, if the original attachment (including provisional attachment) competes with the execution obligee, the assignment order becomes null and void under Article 561(2) of the Civil Procedure Act.
Therefore, the repayment of 6,50,000 won to the whole creditor of the defendant is valid in relation to the plaintiff, who is his creditor. Thus, although the above amount and the damages for delay are without merit in the plaintiff's principal claim, the court below decided that the repayment is null and void on the ground as seen above, the court below erred in the misapprehension of legal principles as to the validity of the repayment to quasi-Possessor of the claim, and this constitutes a serious violation of law which is deemed to be considerably contrary to justice and equity. Therefore, the argument on this point is with merit.
The defendant is also dissatisfied with the above-mentioned KRW 6,500,000 among the original judgment and the damages for delay for the above amount. However, even if examining the grounds of appeal on this point, the part shall be dismissed.
In this regard, gold 6,500,000 won among the original judgment and the part on the claim for damages for delay shall be reversed and remanded to the lower court. The remainder shall be dismissed and it is so decided as per Disposition by the assent of all participating judges.
Justices Yoon Il-young (Presiding Justice)