In case where a seizure and collection order has been issued against a monetary claim, whether it is possible to seize the ability of the execution creditor to collect the monetary claim in question, for which the execution creditor issued a collection order (negative)

Even if there was a seizure and collection order against a monetary claim, it is nothing more than the realization of a realization disposition in the procedure of compulsory execution because it merely gives the creditor the right to collect the creditor's claim against the third debtor in the procedure of compulsory execution, and it does not belong to the creditor who has a claim against the third debtor. Thus, such collection right is of the nature that it cannot be seized because it is not possible for the debtor to independently dispose of it and liquidate it. Therefore, the provisional seizure decision on such collection right is null and void, and even if it was rendered in favor of the court by exercising the effect of the collection right in the lawsuit, it also belongs to the collection right, so the provisional seizure decision on the claims to be paid in accordance with such decision shall also be deemed null and void.

Article 563 of the Civil Procedure Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

주식회사 대한훠딩 (소송대리인 변호사 양기준)

Maximum Enforcement Decree (Law Firm Shin, Attorney Cho Young-young, Counsel for the defendant-appellant)

Seoul High Court Decision 96Na4062 delivered on November 1, 1996

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

We examine the grounds of appeal.

On the first ground for appeal

The debtor cannot raise an objection against the decision of provisional seizure of this case on the ground that there is a title of debt such as the theory of lawsuit against the claim subject to provisional seizure of this case, and an objection against the decision of provisional seizure of this case can not be raised until the execution of the decision of provisional seizure of this case is invalidated, as long as there is a benefit to seek revocation or alteration of the decision of provisional seizure of this case, since the execution of the decision of provisional seizure of this case is completed, it is not possible to raise an objection. Further, an objection against the decision of provisional seizure of this case can not be raised as a ground for objection without restriction on the ground that the ground for revocation or alteration of the decision of provisional seizure of this case can be raised against the legitimacy of the decision of provisional seizure of this case. The judgment of the court below

On the second ground for appeal

Even if there was a seizure and collection order against a monetary claim, it is nothing more than the realization of realization disposition in the compulsory execution procedure because it merely gives the creditor the right to collect the monetary claim against the third debtor in the compulsory execution procedure, and it does not belong to the creditor who has the creditor against the third debtor. Thus, such collection right cannot be seized because it does not directly dispose of it and realize it (see Supreme Court Decision 88Da3465 delivered on December 13, 198). Therefore, the provisional seizure decision on such collection right has no effect, and even if a favorable judgment was rendered by exercising the right of collection in the course of a lawsuit, it is also included in the collection right. Accordingly, the provisional seizure decision on a monetary claim is invalid as provisional seizure for the collection right. Accordingly, the provisional seizure decision on a monetary claim in this case is not effective as provisional seizure for the collection right.

The judgment of the court below to the same purport is just, and there is no error of law as the theory of lawsuit. There is no ground for discussion.

On the third ground for appeal

As long as the provisional attachment decision of this case is aimed at collecting the right, it cannot be viewed as valid within the scope of the amount to be distributed to the debtor, even if the debtor receives a certain amount of money as dividends in the distribution procedure to be conducted later.

The court below's decision to the same purport is just, and there is no error of law as in the theory of lawsuit. There is no ground for appeal.

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)