[추심금][미간행]
In case where the creditor transferred the claim on the executive title after having received a seizure and collection order based on the executive title, but the transferee did not obtain an execution clause to succession to the existing executive title, whether the seizure claim may be collected in the position of the executive creditor (negative)
Articles 31(1) and 57 of the Civil Execution Act, Article 23 of the Civil Execution Rule
Medical Treatment Entertainment Co., Ltd.
Defendant 1 and one other
Seoul Northern District Court Decision 2008Na328 decided April 23, 2008
The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.
Judgment ex officio is made.
In the compulsory execution procedure, in order to ensure the official confirmation of legal relationship and the prompt and accurate realization thereof, the clarification and stability of the procedure should be emphasized. Thus, even if a person who succeeds to the status of a creditor who has an executive title, in order to apply for compulsory execution based on the existing executive title, if he/she intends to apply for compulsory execution based on the existing executive title, he/she shall obtain an execution clause succeeded pursuant to Article 31(1) of the Civil Execution Act (including cases applied mutatis mutandis pursuant to Article 57 of the same Act). Even in cases where he/she succeeds to the status of a creditor after the compulsory execution by executive title commenced, he/she shall submit an attested copy of the executive title to which an execution clause succeeded is to apply for compulsory execution on his/her own behalf, as prescribed in Article 23 of the Civil Execution Rule, and in such cases, the junior administrative officer or enforcement officer shall notify the debtor thereof. Therefore, even if the creditor transferred the claim on the executive title after receiving a seizure and collection order based on the executive title, if the transferee of the existing claim did not obtain
According to the facts acknowledged by the court below, the plaintiff received the claim against the non-party 1, the debtor of the non-party company, who was subject to the seizure and collection order of the lease deposit claim of this case (hereinafter "non-party 1"), and the non-party 1 did not separately receive the succession execution clause as to the title of execution against the non-party 2, the joint guarantor of the non-party 1. In such case, the plaintiff has no authority to directly file a lawsuit against the defendant for the collection of this case. Ultimately, the lawsuit of this case is filed by the non-party 1, and thus should be dismissed.
Nevertheless, the court below maintained the judgment of the court of first instance which dismissed the plaintiff's claim, deeming that the existence of collection capacity merely pertains to the legitimacy of the claim. In so doing, the court below erred by misapprehending the legal principles on the eligibility of the party, which affected the conclusion of the judgment.
Therefore, without further proceeding to decide on the Plaintiff’s grounds of appeal, the judgment of the court below is reversed ex officio. Since this case is sufficient for the court to directly render a judgment, the judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed, and the total costs of the lawsuit shall be borne by the losing Plaintiff. It is so decided as per Disposition by the assent of all participating Justices.
Justices Ahn Dai-hee (Presiding Justice)