2015Da16590 Preemptives

Mawon Electrical Machinery Co., Ltd.

A

Suwon District Court Decision 2014Na22977 Decided January 29, 2015

July 9, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

Judgment ex officio is made.

If there exists a seizure and collection order, only the collection obligee may file a lawsuit for performance against the garnishee. The existence of the standing to sue is an ex officio investigation, and the court shall investigate and determine it ex officio, even if there is no assertion by the parties (see Supreme Court Decision 2000Da25866, Apr. 12, 2002).

Meanwhile, in cases where a creditor transfers a claim on the executive title after having received a seizure and collection order based on the executive title, if the transferee of the claim did not obtain an execution clause on succession to the existing executive title, it cannot be deemed that the creditor has the ability to collect the seized claim as the executive creditor (see Supreme Court Decision 2008Da32310, August 11, 200).

According to the judgment of the court below and the records, an Arabic corporation (hereinafter referred to as an "Ethic") has adjusted that on January 9, 2010, it filed a claim for the purchase price against Athalty (hereinafter referred to as "Athalty") Athalty corporation, Athalty corporation, Athalty corporation (hereinafter referred to as "Athalty") to pay Athalty amount of KRW 106,306,90 to Athalty. Athalty was assigned with the above executory original statement of mediation (hereinafter referred to as "the executive title of this case"), the claims that were transferred to the defendant with respect to the provisional attachment of KRW 90,568,90 from among claims held against the defendant, and the claims that were transferred to the defendant under the provisional attachment order of KRW 206,306,90 from among claims that were transferred to the defendant and the claims that were assigned to the defendant under the above provisional attachment order of KRW 4,624 after the attachment order of this case.

Examining the above facts in light of the legal principles as seen earlier, in order for the Plaintiff to collect the instant seizure claim against the Defendant, the garnishee, who succeeded to the status as a creditor of compulsory execution by taking over the instant claim based on the title of execution from the Emphism to whom the seizure and collection order was issued, the instant execution clause should be granted, and the existence of the Plaintiff’s standing to be a party constitutes an ex officio examination by the court.

Therefore, the court below should have dismissed the lawsuit of this case in the end, on the ground that there is no authority to file a lawsuit against the defendant for direct payment of the seizure claim of this case, in case where it is found that the plaintiff was granted the succeeding execution clause to the title of this case, and that the plaintiff was not granted the succeeding execution clause.

Nevertheless, the lower court, without taking such measures, accepted the Plaintiff’s claim for the transfer money solely for the reasons indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the standing of parties in accordance with a collection order and the assignment of claims, and failing to exhaust all necessary deliberations

Therefore, without examining the Defendant’s grounds of appeal, the lower judgment is reversed ex officio, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Kim Yong-deok

Justices Kim In-young