Whether a garnishee who received an order in whole may oppose all the obligees as grounds for defense against the obligee prior to the seizure of the claim (affirmative)

In accordance with an assignment order, the entire claim shall be transferred from the execution obligor to the execution obligee without maintaining the identity of the claim, and the third obligor may set up against the whole obligee with defense against the execution obligee prior to seizure of the claim. Therefore, in case where the construction work is delayed due to delayed payment of wages to the employees of the contractor when the contract for the construction work is made, if the contractor agrees to pay the wages directly to the employees from among the construction costs to be paid to the contractor, the contractor may refuse the payment to the contractor for the construction cost due to the delayed payment of wages, and therefore, the obligor may set up against the whole obligee with defense as above.

Articles 563 and 564 of the Civil Procedure Act

[Plaintiff-Appellant] Kim Nam-jin

1. The name of the court below and the name of the defendant

Seoul High Court Decision 83Na4122 delivered on February 21, 1984

The judgment below is reversed and the case is remanded to Seoul High Court.

The ground of appeal No. 1 by the defendant's attorney is examined.

1. According to the reasoning of the judgment below, the court below determined as follows. The defendant ordered the non-party 2 to dismantle the facilities and equipment of the defendant company to the non-party 23,134,500 won of the construction price, and the plaintiff bears the obligation to pay KRW 23,134,50 of the construction price, based on the certified copy of the certified promissory note with executory power over the non-party company's above non-party company's claim for the above construction price against the defendant on November 25, 1982. After it confirmed that the order was issued by seizure and assignment order to the non-party 3 debtor on the following day, the defendant agreed to pay the above construction price directly with the above company as wages to the employees of the above company before the above assignment order was issued, and thus

In other words, in case where the above non-party company's delayed payment of wages to its employees and interference with the construction work, the non-party company agreed upon confirmation of the non-party company to pay the overdue wages directly to its employees. Upon the commencement of construction work and delayed payment of wages to its employees, the defendant agreed on November 1, 1982 between the non-party company and the non-party company's employees on December 13 of the same year that the defendant paid 23,134,500 won in full to the non-party company's employees as the construction work cost. However, the above payment agreement between the non-party company and the defendant is concluded between the creditor and the non-party company, not between the creditor and the non-party company, and the non-party company's obligee, the non-party company's obligation to pay the construction price was not effective after the non-party company's commencement of construction work and the non-party company's obligation to pay the above construction price was not effective after the non-party company's delivery of the above construction price to the non-party company's employees.

2. However, in accordance with an assignment order, the entire claim is transferred from the execution obligor without maintaining its identity to the execution obligee, and the third obligor is entitled to oppose against the entire obligee as a defense that had been held by the execution obligee prior to the seizure of the claim. If, as determined by the court below, in the contract for construction work where the construction work is delayed due to delayed payment of wages to the employees of the contractor, the contractor agrees to pay the wages directly to the employees out of the contract price, the contractor may refuse to pay the contract price equivalent to the overdue wage to the contractor, and therefore, the plaintiff who is the whole obligee may oppose the plaintiff who is the execution obligee with defense against the refusal of payment of the contract price under the above contract (this case's wage shall also be subject to prohibition of seizure if it falls under the wage stipulated in Article 36-8 of the Construction Business Act).

Therefore, as long as KRW 23,134,50, which is the total amount of the claim in this case, was already paid as wages in arrears under the above agreement as determined by the court below, the court below, which interpreted otherwise without room to accept the claim in this case, erred by misapprehending the legal principles as to the effect of an assignment order, thereby affecting the conclusion of the judgment. This is reasonable as it constitutes grounds for reversal under Article 12(2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings.

3. Therefore, without examining other grounds of appeal, we reverse the judgment below and remand the case to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)