Seoul Southern District Court 2012Kadan67263 (02.08)

An assignment order issued under the concurrent status of seizure shall be null and void.

Each assignment order is null and void as it is obvious that the seized claim does not reach the amount of the seized claim at the time of the assignment order, when the seizure competes with each other.

Article 24 of the National Tax Collection Act

2013Na51051 Demurrer against distribution

KimA

Korea

Seoul Southern District Court 2012Kadan67263

December 26, 2013

on January 23, 2014

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance shall be revoked. With respect to the dividend procedure case of Seoul Southern District Court 2012 Tagi597, the dividend amount to the defendant shall be KRW 00,000,000, and the dividend amount to the plaintiff shall be corrected to KRW 0,000,000,000,000,000,0000,0000,0000,0000,000,0000,000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is as follows: "Nos. 2 through 3, 16, 2, 3 and 3, 2012." "No. 36, 2012." "No. 26, 2012." "No. 3013, 2012." "No. 3073, 2012." "No. 5, 5, 13 through 16, 4) of the judgment of the court of the first instance" shall be used as follows; "No. 8, 24 through 30, 30, 4 and 9 of the judgment of the court of the first instance"; "No. 16, 4 and 9 of the court of the first instance shall be stated as follows; "No. 9 and 9 of the court of the first instance"; "No. 9 and 16 of the court of the first instance shall be stated as follows; "No. 9 and 16 of the court's/4 of the first instance court of the first instance judgment;

[Supplementary Use]

C. On October 24, 2011, at the Seoul Southern District Court, the Plaintiff obtained five assignment order (201TTT 26315 through 2011T 2011 through 26319) to the instant judgment bond and the instant fee claim, which was the sum of the claim amounts, from the Seoul Southern District Court, regarding the instant judgment bond and the instant fee claim. Of the five assignment order, three assignment order of claims (201TT 26315, 201T 26316, 2011T 26316, 201T 26317, 000 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, 201, 2618, 2010, 2010, 2011).

[Supplementary Use]

4) On October 27, 201, from October 27, 201, the delivery date of the Plaintiff’s assignment order, Kimhae applied for the cancellation of attachment and waiver of collection rights to the above court on September 26, 2012.

[Supplementary or written, Additional Determination]

(b) Competition of seizure;

1) The plaintiff's assertion

As of October 27, 201, the Plaintiff asserts that the instant claim attachment and assignment order reached the third obligor on the ground that ① KRW 00○○○○○ (Evidence No. 6, 40), ② the sum of the fee claims arising from October 2011 through March 2012, 201, including the fee claims from October 201 to March 201, ○○○○○ (in the first instance court’s inquiry into Ethitty), ③ the fee claims for five years expected to occur in the future (Evidence No. 20), ④ whether the third obligor’s payment of the fee claims to the obligor on August 22, 201, KRW 10 (Evidence No. 11), KRW 201, KRW 130, KRW 211, KRW 210, KRW 211, KRW 20, KRW 131, 2011, and KRW 13,001, KRW 16,012, which was paid to the obligor on September 20, 2013.

2) (1) Whether the claim of this case is included in the seized claim

However, even in cases where a seized claim is a future claim containing an element of uncertainty of its existence and scope, if it is possible to specify such claim and if it is expected to have a reasonable degree that such claim will occur in the near future, the assignment order is valid. However, if an assignment order becomes final and conclusive, within the scope of the execution claim retroactively from the time when the assignment order was served on the third debtor, and at the same time, the execution claim becomes void. However, if it is found that the execution claim does not exist in whole or in part after the assignment order became final and conclusive, the substantive effect of an assignment order on such part is retroactively invalidated in accordance with the proviso to Article 231 of the Civil Execution Act (see, e.g., Supreme Court Decision 9Da15177, Nov. 15, 2001).

According to the above evidence, the first instance judgment (Seoul Central District Court 2010Gahap77809) in the above paragraph 1(b) is merely a judgment confirming the absence of the joint and several obligation of △△△△△△△△△△△△△△△△ for the Defendant, and is not a judgment ordering the performance of monetary claim, and the appellate court (Seoul High Court 201Na33285) in the above lawsuit revoked the first instance judgment on June 21, 2012 and ruled against the △△△△△△△△△△△△△△△△ decision dismissing the claim for the judgment of this case changed in exchange at the appellate court. The above lawsuit is still pending in the appellate court. In light of the plaintiff's claims attachment and assignment order delivered to △△△△△△△△△, which was delivered to △△△△△, it is difficult to view the above lawsuit as having been in existence at the time of the appellate court, and the litigation process and the purport of the judgment, etc., it can be seen that the assignment order became effective in whole or part of the assignment order.

Therefore, the plaintiff's assertion that this case's claim is included in the scope of seized claim is without merit.

3) The scope of claims of the instant fee belonging to the claims subject to seizure (whether attachment is concurrent)

A) Where an assignment order is issued in the condition that attachment is overlapped with respect to a future non-determined claim;

Whether an assignment order becomes null and void due to the competition of seizure should not be determined based on the amount of claims subject to seizure finally finalized, but on the basis of the amount of claims subject to seizure under contract at the time when the assignment order was issued to a third party obligor (see Supreme Court Decision 2009Da9890, May 13, 2010). In addition, where the total amount of claims subject to seizure is determined as a result of different proposals for seizures, each seizure does not expressly indicate the time when the claims subject to seizure take effect in each seizure. Each seizure shall have the effect of continuing claims arising after the seizure, except where the effect of seizure is excluded from the effect of seizure due to other reasons, on the other hand, even if the seizure occurred after the seizure is conducted after other reasons (see Supreme Court Decision 2001Da10748, May 30, 2003). When the attachment is determined based on the difference between the amount of claims subject to seizure and the total amount of claims subject to seizure accrued after the continuous seizure of the claims subject to seizure.

B) First, we examine the argument on the aggregate of the fee claims incurred from October 201 to March 2012 ○○○○○○○.

According to the results of the fact-finding by the court of the first instance on the registration of △△ in the △△ in the △△ in the △△ in the △△ in the △△ registry from October 201 to March 2012, 2012, it is recognized that the total amount of ○○○○ in the △△ in the △△ in the △△ in the △△ in the △△ in the △△ in the △ in the △ in the △△ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the △ in the

The plaintiff asserts that, in order for the third debtor to set-off against the execution creditor, the payment period of the claim should reach or reach at least the same time than the claim subject to seizure, and if not, it cannot be asserted for set-off. In light of each set-off, the third debtor, the third debtor, is deemed to have set-off against the opposite claim newly created, so it cannot be asserted against the plaintiff.

In light of the purport of the above provision, the purpose and function of the offset system, and the interests of the parties concerned in cases where the obligor’s claims are seized, etc., in order to set-off against the obligee who has been subject to an order of seizure or provisional seizure (hereinafter only in cases of an order of seizure of claims) to set-off against the obligee, if the obligor who has been subject to an order of seizure or provisional seizure of claims (hereinafter referred to as an “order of seizure of claims”) has the opposing claims against the obligor, both opposing claims are in set-off at the time of the effect of seizure, or if the obligor’s opposing claims have not arrived at the maturity of the time of the seizure, the obligor’s claims are to be entered in the set-off at the same time or earlier (see, e.g., Supreme Court en banc Decision 201Da4521, Feb. 16, 2012), and there is no evidence to acknowledge that the obligor’s new obligation of set-off against the obligee’s new obligation of △△△△△△△△△ Province was already concluded.

Therefore, even if a claim equivalent to ○○○○○○○○○ exists as of October 27, 201, when the Plaintiff’s assignment order became effective on October 27, 2011, it shall be deemed that the third-party obligor extinguished a claim equivalent to ○○○○○○○ by offsetting the total amount of the above claim with the opposite claim, and the same applies to the claim for fees incurred thereafter.

Therefore, the Plaintiff’s assertion that there is a total amount of the fee claim incurred from October 201 to March 2012 cannot be accepted, and since △△△△ deposits the instant fee claim on March 26, 2012 and ○○○○○ on August 10, 2012, the fee claim equivalent to the above amount is recognized by that time (However, in light of the legal principles as seen earlier, whether a seizure is concurrent should not be determined based on the amount of the final seized claim, but on the amount of the contractual seized claim at the time when the assignment order was served to the third obligor).

C) Furthermore, according to the results of the fact-finding on the ○○○○○○○ in the fee claim for five years in the next five years expected to occur in the future, each fact-finding with respect to the fee claim for the next five years, and each fact-finding with respect to the △○○○ in the court of the first instance and the court of the first instance, it is recognized that the agency contract between the △○net and the △△△△△△ in the Seoul Special Self-Governing Province had been terminated on April 1, 2012 and no fee has been accrued after the termination of the contract. Therefore, it is insufficient to recognize

D) We examine the Plaintiff’s respective fees claims against the Plaintiff: (a) ○○○○○○○, ○○○○○○○○, and ○○○○○○○○.

According to the statements in Gap evidence No. 11 and No. 12, it is difficult to recognize that the third debtor, the debtor, has repaid the fee ○○○○○○○ on August 22, 201, and the fee ○○○○○○○○ on September 20, 201, respectively, to the △○○○○○○○○○○○ on September 20, 201, although it is recognized that the third debtor, the debtor, paid the fee △○○○○○○○ on around September 2011, or that the third debtor has disposed of the above fee ○○○○○○○○○○ on the basis of the statement in evidence No. 20, or there is no other evidence to recognize it ( even if the fee ○○○○○○○○ was established, in light of the legal principles as seen earlier, the third debtor may oppose the execution creditor by offsetting the seized claim with the opposite claim that has already arrived at the maturity of the payment, and therefore, the plaintiff’

Meanwhile, the prohibition of disposition of seizure is not absolute, but has a relative effect in the sense that it cannot be asserted against an execution creditor or a distribution creditor who participated in the execution procedure prior to disposition or performance by a debtor's act of disposal or a third debtor's repayment. Thus, where an obligor has already been disposed of or discharged by a third debtor before the seizure takes effect, even if there are circumstances prior to the seizure, which make it impossible for the obligee to oppose the obligee, it shall be a valid disposition or performance against the obligee who has received an order of seizure after disposition or performance (see Supreme Court Decision 2001Da10748, May 30, 200), and where the third obligor, △△△△, a third obligor, paid ○○○○○○ on August 22, 201, and ○○○○○○○ on September 20, 201, respectively, has the nature of the obligee's repayment, and in light of the legal principles and the relative effect of the seizure agreement, the Plaintiff's assignment order cannot be asserted as 2001.

E) Sub-decisions

Therefore, the above fee claims asserted by the Plaintiff are not recognized as claims subject to seizure, and according to the facts of recognition as seen earlier, prior to October 27, 201, when the seizure takes effect, the sum of the amount of claims seized on the instant fee claims is KRW 00,00,000, and even before October 17, 2011, when the amount of the deposit deposited on the instant fee claims held by △○○○○, or the total amount of the seized claim is not deposited on the grounds that the amount of the seized bond claims competed by △○○○○, or the Plaintiff’s each of the instant claims seized and assignment order issued to △△△△△, a garnishee on October 27, 2011, was served on △△△, a debtor on October 27, 2011, and it is apparent that the amount of the instant fee claims as of October 27, 2011 falls short of the amount of the seized bond claims issued by the Plaintiff, each of the Plaintiff’s assignment orders is null and void.

The Plaintiff asserts that the determination of the validity of an assignment order shall be based only on the amount of two claims subject to attachment (2011TTT 26318, 2011TT 26311, 26319, 000, 2000, 2000) that priority is attached to the instant claim. However, as seen earlier, insofar as the instant judgment amount does not exist, the remainder of claims attachment and assignment order should be determined based on the total amount of claims subject to attachment as subordinated claims, even if the instant judgment amount was designated as senior claims subject to attachment, and even if the Plaintiff’s assertion was received, the conclusion that the amount of claims subject to attachment does not fall short of the amount of claims subject to attachment at the time of the effectiveness of attachment does not change. Therefore, the Plaintiff’s above assertion is without merit (In addition, even if it is recognized that Kim △△△△△△ was applied for the cancellation and waiver of collection rights at the above court on September 26, 2012, and even if each of the Plaintiff’s assignment order becomes null and void after its subsequent execution.

2. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.