[가압류취소][공2014하,2167]
In a case where Party B notified Party B of the assignment of claims to Party B after the order to file a suit, but Party B failed to receive the assignment by content-certified mail, and Party B filed a suit against Party C within the period for filing the suit and filed a report, the case holding that the lower court erred by misapprehending the legal principles in determining that Party A’s report is unlawful, and thus, revoked the provisional attachment order.
In a case where Party B notified Party B of the assignment of claims to Party B after the order to file a suit, but Party B failed to receive the assignment of claims by content-certified mail, and Party B filed a suit against Party B within the period for filing a suit and filed a report on filing a lawsuit, the case holding that the lower court erred by misapprehending the legal principles in determining that Party B’s report on provisional attachment is unlawful, on the ground that Party B’s submission of a lawsuit against Party B, even if Party B did not meet the requirements for setting up against the assignment of claims, and that Party C’s submission of a report accompanied by the written complaint receipt within the period set forth in the order
Article 287 of the Civil Execution Act
Applicant
Respondent
S. S. A.M.C.
Suwon District Court Order 2014Ra904 dated July 10, 2014
The part of the order of the court below against the applicant is reversed, and that part of the case is remanded to Suwon District Court Panel Division.
The grounds of reappeal are examined.
1. The lower court determined that ① the respondent received the provisional attachment order against the non-applicant, ② the respondent filed an application with Suwon District Court 2013Kaman2431 on behalf of the non-applicant on behalf of the non-applicant on November 27, 2013. The Suwon District Court issued the instant order to the effect that “the respondent filed a lawsuit on the merits within 20 days from the date on which the ruling was served on the respondent and the documents evidencing it are shipped out” on November 7, 2013. ③ the respondent transferred the claim for the provisional attachment order to the successor to the respondent on November 14, 2013. On the same day, the non-applicant notified the non-applicant by document verifying its content, but the non-applicant failed to receive it; ④ the successor filed a claim for the provisional attachment order against the non-applicant on November 27, 2013, which was within the period of filing the instant order with the competent district court, which recognized that the non-applicant did not have any opposing power to the claim for restitution.”
2. However, the assignment of a claim refers to a contract between the former creditor, the transferor and the new creditor, the object of which is to transfer the claim from the former to the latter, while maintaining the identity of the claim, and the claim by the assignment of a claim is not lost its identity and is transferred from the transferor to the assignee, and such legal doctrine is likewise applicable even if the claim does not meet the requisite for setting up against the assignment of the claim (see Supreme Court Decision 2005Da41818, Nov. 10, 2005, etc.). Thus, even if the succeeding intervenor who received the claim by the respondent for the provisional attachment decision of this case did not meet the requisite for setting up against the assignment of the claim, the succeeding intervenor shall succeed to the respondent's status of the order for filing the lawsuit of this case, and it is reasonable to deem that the succeeding intervenor complied with the order for filing the
Nevertheless, the lower court revoked the provisional attachment order on the grounds that the report of the succeeding intervenor’s filing of the lawsuit was unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on the order to file a lawsuit under Article 287 of the Civil Execution Act, thereby adversely affecting the conclusion of the judgment. The ground of reappeal assigning this error has merit
3. Therefore, the part of the order of the court below against the applicant is reversed, and that part of 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 Jo Hee-de (Presiding Justice)