[1] Whether the benefit of a lawsuit exists in a case where a suit by a third party is filed after the completion of compulsory execution or compulsory execution, which existed at the time of the filing of the suit, is terminated while the lawsuit is pending (negative)

[2] Whether a compulsory execution procedure is terminated even where a claim assignment order becomes final and conclusive and the entire claim does not exist (affirmative)

[1] A lawsuit of demurrer by a third party is a lawsuit seeking an objection against a compulsory execution that is practically being carried out by a third party who has the ownership or right to block transfer or transfer of the subject matter of compulsory execution, thereby infringing on the ownership or right thereto, and thus, it is unlawful as there is no benefit of lawsuit in the event that the lawsuit of demurrer by a third party is filed after the completion of the pertinent compulsory execution, or compulsory execution that existed at the time when the lawsuit of objection by a third party is pending in the lawsuit.

[2] Where a seizure and assignment order of a monetary claim has been issued lawfully in the execution procedure, and the period of an immediate appeal has expired one week, or an immediate appeal has been filed, and the appeal is dismissed or a decision of dismissal has become final and conclusive, the repayment of the execution claim becomes effective, and the execution procedure is terminated at that time. Even if there is no all-inclusive claim, the extinction of the execution claim does not occur under the proviso of Article 564 of the Civil Procedure Act, but the execution procedure is terminated by the confirmation of an assignment order as in the case where the entire claim exists, and as long as the execution claim does not exist, the entire creditor can perform a new compulsory execution by obtaining a new executory exemplification by proving that the entire claim does not exist, as long as the execution claim has not been extinguished.

[1] Article 509 of the Civil Procedure Act / [2] Articles 561, 563, and 564 of the Civil Procedure Act

[1] Supreme Court Order 68Da1111 Decided September 3, 1968 / [2] Supreme Court Order 86Da139 dated October 17, 1986 (Gong1987, 222) Supreme Court Order 90Ma892 dated January 31, 1991 (Gong1991, 954) dated April 15, 1992 (Gong192, 1816)

Plaintiff (Attorney Choi Yong-hoon, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 96Na7825 delivered on July 2, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. A lawsuit of demurrer by a third party is filed by asserting an objection against compulsory execution that is practically being carried out by a third party who has the ownership or right to block transfer or transfer of the object of compulsory execution, and thus, seek the exclusion of enforcement. Therefore, in a case where a lawsuit of demurrer by a third party is filed after the compulsory execution concerned is completed or compulsory execution, which existed at the time of filing a lawsuit by a third party, is terminated during the proceeding of a lawsuit, it is unlawful as there is no benefit of lawsuit.

Meanwhile, Articles 561 and 563 of the current Civil Procedure Act provide that an immediate appeal may be filed against a judgment on the application for a seizure and assignment order of monetary claims, and that an assignment order shall be effective. Article 564 of the same Act provides that where an assignment order has become final and conclusive, an obligor shall be deemed to have discharged his/her obligation at the time when the assignment order was served on the garnishee: Provided, That this shall not apply in cases where no obligation exists. Thus, in cases where a seizure and assignment order of monetary claims has been lawfully issued in the execution procedure and the immediate appeal has been duly served on the obligor and the third obligor, or immediate appeal has been filed and the appeal is dismissed or a decision to dismiss the appeal has become final and conclusive, the execution procedure has become effective in relation to the execution claim and the execution procedure has been terminated at that time, even if there is no entire claim under the proviso of Article 564 of the same Act. However, the compulsory execution procedure is finalized as the compulsory execution procedure has become final and conclusive, and the entire execution creditor shall not have a new executory obligation by establishing a new executory obligation.

Therefore, a lawsuit of demurrer filed by a third party against a debtor's third party's attachment and assignment order of a claim against the debtor's third party, other than the debtor, is unlawful, regardless of whether the lawsuit exists in the whole amount of the claim, or whether the claim attachment and assignment order becomes final and conclusive after the lawsuit is filed, or whether the claim attachment and assignment order becomes final and conclusive after the lawsuit is filed.

2. According to the records, around May 10, 1995, the defendant filed an application for seizure and assignment order of deposit claim of this case against the non-party 2 bank of this case with the non-party 1 corporation of this case with the executory exemplification of No. 864 of Seoul Dong-gu Office 95 (No. 864), Incheon District Court 95ta2852 and 2853 (No. 863), and the attachment and assignment order of this case against the non-party 1 corporation of this case against the non-party 1 corporation of this case with the executory exemplification No. 866 and 868 of the 95 (No. 8656, 2857) with the executory exemplification of the 95-year certificate against the non-party 2 corporation of this case against the non-party 1 corporation of this case. On the same day, the above court notified each of the above seizure and assignment order of this case to the non-party 3 corporation of this case and each of this case's immediate execution order were dismissed.

According to the reasoning of the judgment of the court of first instance cited by the court below, the court below erred by finding facts that the lawsuit of the third party objection of this case was instituted after each of the above assignment order became final and conclusive. However, the judgment of the court below is justified as it is in accordance with the above opinion of party members, and there is no error of law such as misconception of facts, incomplete deliberation, or misapprehension of legal principles due to violation of the rules of evidence

Therefore, we cannot accept the judgment of the court below on the premise that the lawsuit of this case is legitimate, because it is merely an error of the selection of evidence and fact-finding which belong to the exclusive jurisdiction of the court below, or it is merely an omission of the judgment of the court below and an independent assertion.

3. Therefore, the appeal is dismissed and all 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 Lee Yong-hun (Presiding Justice)