[1] Where the object of a claim to be prohibited from seizure is deposited into a debtor's deposit account, whether the deposit claim constitutes a claim to be prohibited from seizure (negative), and in such case, whether the execution court may cancel the whole or part of a seizure order pursuant to Article 246 (2) of the Civil Execution Act (affirmative)

[2] In a case where a debtor who is subject to the seizure prohibition submits a document claiming revocation of the whole or part of the seizure order against the deposit claim deposited in the object of the seizure claim to the court of execution as an immediate appeal or objection, whether the court of execution shall regard the above application as an application for revocation of the seizure order under Article 246(2) of the Civil Execution Act and make a judgment thereon (affirmative)

[3] In a case where a debtor who was attached with a deposit claim whose veterans' pension was deposited filed a petition with the court of execution seeking revocation of the seizure order under the title of "written objection", but the court of execution deemed the above petition as an immediate appeal against the seizure and collection order and sent the record to the court of appeal, the case holding that the above application was transferred to the court of execution on the ground that it should be deemed as an application for cancellation of the seizure order under Article 246 (2) of

[1] Article 246 of the Civil Execution Act / [2] Article 246 (2) of the Civil Execution Act / [3] Article 246 (2) of the Civil Execution Act

[1] Supreme Court Order 96Ma1302, 1303 dated December 24, 1996 (Gong1997Sang, 527) Supreme Court Order 99Ma4857 dated October 6, 1999 (Gong199Ha, 2463)

Bar Card Co., Ltd.

The debtor

Korea Bank and 3 others

Seoul Southern District Court Order 2008Ra279 dated November 5, 2008

The order of the court below shall be reversed. The case shall be transferred to the Seoul Southern District Court.

Judgment ex officio is made.

In a case where the object of the claim to be prohibited from seizure is deposited into the debtor's deposit account, the deposit claim does not have the effect of prohibition of seizure. Thus, even in such a case, the original purpose of prohibition of seizure should be taken into consideration. Therefore, pursuant to Article 246 (2) of the Civil Execution Act, the execution court may cancel the whole or part of the seizure order upon the debtor's request, taking into account the debtor's living conditions and other circumstances (see Supreme Court Order 96Ma1302, 1303, Dec. 24, 1996; Supreme Court Order 9Ma4857, Oct. 6, 1999, etc.). Meanwhile, in a case where the debtor submitted to the execution court a document demanding cancellation of the whole or part of the seizure order after the deposit claim against which the object of the claim to be prohibited from seizure was deposited, the execution court shall report the above document to the execution court's revocation of the seizure order as stipulated in Article 246 (2) of the Civil Execution Act, unless there are special circumstances such as an immediate appeal or objection.

According to the records, the creditor filed an application with the executing court for the attachment and collection order of the deposit claim of this case held by the re-appellant against the garnishee. The executing court accepted it on September 3, 2008 and issued the attachment and collection order of this case. ② The re-appellant sent the records to the appellate court, which was the appellate court in accordance with the judicial assistant rules, on September 23, 2008, under the title "written objection" that the re-appellant deposited the veterans' pension received as the person of distinguished service to the State, and it is difficult for the re-appellant to live due to the lack of living expenses due to the reason that it was difficult for him to live. ③ The executing court did not apply for the cancellation of the seizure order under Article 246 (2) of the Civil Execution Act, but did not apply for the cancellation of the seizure order under Article 246 (2) of the Civil Execution Act, and sent the records of this case to the court of appeal. The court of appeal dismissed the appeal.

However, according to the legal principles as seen earlier and the legislative purport of Article 246(2) of the Civil Execution Act, the execution court deemed the application of this case as an application for cancellation of a seizure order under Article 246(2) of the Civil Execution Act, and should have judged whether to cancel the whole or part of a seizure order taking into account the living conditions of the creditor and the debtor, and other circumstances, but did not make any decision thereon and did so by deceiving the application of this case as an immediate appeal, and the court below erred by misapprehending the error of the execution court.

Therefore, the order of the court below is reversed ex officio, and the case is transferred to the court of execution. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)