[2] Whether an obligor may file a lawsuit for performance against a third party obligor after provisional seizure of the claim (affirmative)

[3] Where a creditor obtains a title of debt due to winning in a lawsuit on the merits of the case, the validity of the assignment of claim against the transferee who takes over the claim in the status restricted by the provisional seizure (negative)

[2] Generally, even if a provisional attachment is made on a claim, it is a principle that the debtor is prohibited from collecting the benefit from the third debtor in reality, and the debtor can file a lawsuit seeking the performance against the third debtor, and the court cannot reject it on the ground that the provisional attachment has been made. This is because, as the debtor, there is a need to acquire the name of the debt even if his claim has been provisionally attached against the third debtor, or there is a need to suspend the prescription. In addition, in the case where the provisional attachment was made during the proceeding of a lawsuit, if the claim is rejected on the ground that it is difficult to bring a lawsuit again after the provisional attachment was revoked, while even if the third debtor is a judgment ordering the performance, it will be sufficient to block it at the execution stage.

[3] The effect of prohibition of disposal of provisional seizure of claims is derived from the condition that the existence of the preserved right becomes final and conclusive because the creditor of provisional seizure of claims obtains a title of debt in favor of the creditor of provisional seizure of claims in the lawsuit on the merits. Therefore, in case where the creditor of the provisional seizure decision of claims acquires a title of debt due to winning in the lawsuit on the merits, etc., the assignment of claims to the transferee who

1. Fact-finding and judgment of the court below

A. On February 15, 1998, the Plaintiff leased to Nonparty 1 20 square meters of the old-si ( Address omitted) office’s 30 million won and the lease period by February 14, 2000.

B. On April 26, 1999, Nonparty 1 transferred a deposit amount of KRW 20 million to the Defendant and the remainder of KRW 10 million to Nonparty 2, respectively. The Plaintiff, upon termination of the lease contract with Nonparty 1, prepared a power of attorney to the effect that upon lease of the above office to a third party, the Defendant and Nonparty 2 would pay the above amount of the deposit to the Defendant and Nonparty 2 with the deposit deposit received from the third party, and consented to each of the above assignment of claims. However, the above power of attorney did not obtain the fixed date and did not meet the requirements for setting up against the fixed date.

C. On October 7, 1999, the non-party 1's creditor non-party 1's non-party 1's claim amounting to KRW 37,338,031 of the Daegu District Court Kimcheon-gu Branch of Kimcheon-gu (hereinafter "Gecheon-do Branch") as KRW 97,338,031. The provisional attachment order was served on the plaintiff on November 9 of the same month, and the non-party 1's claim amount was also served on the plaintiff on the non-party 1's claim amounting to KRW 33,938,585, the above provisional attachment order was served on the non-party 1's creditor on November 3 of the same year. The non-party 1's claim amounting to the non-party 1's claim amounting to KRW 33,938,585, the above provisional attachment order was served on the plaintiff on the 5th of the same month.

D. Accordingly, on November 30, 1999, the defendant filed a lawsuit against the plaintiff seeking payment of KRW 20 million, which was transferred by Kimcheon-si, Kimcheon-si, 99 Ghana24977, and received a favorable judgment on January 13, 200 in accordance with the constructive confession by the plaintiff's absence.

E. Meanwhile, on January 13, 200, when the payment order was finalized on February 2, 200 by receiving a payment order citing the above provisional seizure against Nonparty 1 as Kimcheon-gu, Kimcheon-si, 200 tea65, Kimcheon-si, 32,142,201, and its delay damages, etc., and upon receiving a payment order accepting it on January 13, 200, the above payment order was issued on May 22, 200, the above provisional seizure was issued on May 22, 200, and the above order was served on the Plaintiff on May 23, 200.

F. Accordingly, on June 16, 200, the Plaintiff deposited the above deposit amount of KRW 30 million as Kimcheon-Support 2000taga599 pursuant to Article 581(1) of the Civil Procedure Act on the grounds that the assignment of claims, provisional seizure of claims, seizure of claims, etc. with respect to the above deposit claim, and reported the reason for deposit. On July 20, 2000, Kimcheon-do in the distribution procedure following the above deposit, Kimcheon-dong Agricultural Cooperative and Man-dong Treasury except for the defendant and the non-party 2 from the distribution of dividends, distributed dividends in proportion to each claim amount.

G. After that, the defendant applied for a compulsory auction on the real estate owned by the plaintiff as Kimcheon-Support 2000ta-do 8136 with the above final judgment against the plaintiff as the title of debt, and received the decision to commence the auction on June 29, 200.

After finding the above facts, the court below rejected the plaintiff's claim of this case based on compulsory execution on the ground that the plaintiff's claim against the plaintiff was based on the plaintiff's claim against the plaintiff's claim for compulsory execution, even though the claim against the plaintiff was based on the court's decision against the plaintiff's claim for the transfer money lawsuit against the plaintiff is based on the plaintiff's obligation to refund the deposit against the non-party 1, since the defendant's deposit was executed on the ground that the plaintiff's claim for the provisional seizure, etc. under Article 581 (1) of the Civil Procedure Act as the third debtor was executed on the ground that the repayment of the deposit was effective only against the non-party 1, and it did not affect the effect of the repayment due to the deposit because it did not affect the plaintiff's claim for compulsory execution on the ground that it was extinguished by the above deposit.

2. Judgment of the Supreme Court

The assignment of a claim refers to a contract between the former creditor, the transferor and the new creditor, the purpose of which is to transfer the claim from the former to the latter, and the claim by the assignment of a claim is not lost its identity and is to be transferred from the transferor to the assignee, and there is no restriction on the transfer of the claim. However, the transferee of the claim provisionally seized shall be deemed to have taken over the claim in a state of limited rights by such provisional seizure (see Supreme Court Decision 99Da2388, Apr. 11, 200). This is the same in the case where the assigned claim is provisionally seized for the purpose of not meeting the requisite to set up against the transferee by notification or consent with the fixed date.

In general, even if a provisional attachment on a claim exists, it is a principle that the debtor is prohibited from collecting benefits from the third debtor in reality, and the debtor can file a lawsuit seeking performance against the third debtor, and the court cannot reject it on the ground that the provisional attachment is made. This is because there is a need to acquire the name of the debt even if his claim against the third debtor is provisionally seized, or there is a need to suspend the prescription. In addition, if the claim is rejected on the ground that provisional attachment is made during the proceeding of a lawsuit, it is difficult for the third debtor to bring a lawsuit again after the provisional attachment is revoked, while even if the third debtor orders performance at the execution stage even if the judgment orders performance, it will be avoided at the execution stage (see, e.g., Supreme Court en banc Decision 92Da4680, Nov. 10, 1992). In addition, the effect of the prohibition of disposal of provisional attachment on the claim becomes final and conclusive on the condition that the creditor who won the provisional attachment becomes a debtor who acquires the claim under the provisional attachment against the assignee 196.

As to the instant case, the Defendant transferred part of the claim against Nonparty 1, but did not meet the requisite to set up against the Plaintiff with the notice of transfer or consent with the fixed date, the Defendant was subject to the transfer of the entire claim under the above provisional seizure. Therefore, it cannot be viewed that the Defendant was ordered to pay the above claim against the Plaintiff by the above provisional seizure. Accordingly, it cannot be viewed that the Defendant was issued a judgment ordering the payment of the above claim. Furthermore, the Defendant was issued a seizure and collection order under the name of the Defendant’s debt against Nonparty 1, which transferred the provisional seizure to the provisional seizure. Furthermore, as the result of the Plaintiff’s deposit for execution on the ground that the deposit was distributed to the provisional seizure creditors, the assignment of claim against the Defendant became null and void in its final judgment. Accordingly, the Plaintiff can seek the exclusion of compulsory execution against the Defendant by the above final judgment.

Nevertheless, the court below rejected the plaintiff's claim of this case solely on the grounds as stated in its reasoning. The court below erred by misapprehending the legal principles on the assignment of claims limited by provisional seizure and the opposing power or extinguishment of the transferred claims, which affected the conclusion of the judgment.

Therefore, the ground of appeal No. 1 on this issue is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Cho Cho-Un (Presiding Justice)