Where a debtor satisfies the requirements for setting up against the transfer of claims by notification, etc. with a fixed date with the transfer of claims subject to seizure or provisional seizure, the validity of an order of seizure or provisional seizure issued by the creditor of the debtor for the transferred claims

Article 450 of the Civil Act, Articles 223 and 280 of the Civil Execution Act

[Plaintiff-Appellant] Plaintiff 2001Da10748 delivered on May 30, 2003 (Gong2003Ha, 1424) Supreme Court Decision 2003Da22561 Delivered on September 3, 2004 (Gong2004Ha, 1647)

Energy Mandong Co., Ltd. and one other (Law Firm Shinsung, Attorneys Gyeong-tae et al., Counsel for the plaintiff-appellant)

Monthly Trade Co., Ltd. (Attorney Yoon-soo et al., Counsel for defendant-appellant)

Busan District Court Decision 2010Na1132, 3145 Decided June 18, 2010

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

The grounds of appeal are examined.

1. Where an obligor disposes of a claim before the seizure of the claim takes effect, even if there is a creditor who first attached the claim and it is impossible to oppose the creditor, the effect of the disposition can be set up against the creditor who participates in the execution after the seizure of the claim. Thus, if the obligor satisfies the requirements for setting up against the transfer of the claim by notification with a fixed date date, etc., even if another creditor of the obligor's transfer of the claim subject to the seizure or provisional seizure satisfies the requirements for setting up against the transfer of the claim by notification with a fixed date, etc., the seizure or provisional seizure has no effect as it does not exist at the time of the seizure or provisional seizure, and as such, other creditors cannot participate in the execution procedure following the seizure, etc. (see Supreme Court Decisions 2001Da10748, May 30, 2003; 2003Da22561, Sept. 3, 2004

2. In full view of the adopted evidence, the court below acknowledged that, after the Defendant’s provisional attachment of the instant claim against Oone Star Shipping, the debtor, the garnishee of Oone Star Shipping, the debtor, the creditor of the instant claim, the transfer of the instant claim to Oone Star Shipping, and the notification of the transfer of the claim to Oone Star Shipping was delivered to the plaintiff Eul branch. The court below determined that, after the transfer of the claim, the instant claim was delivered to the defendant’s provisional attachment, the attachment and collection order of the claim prior to the provisional attachment as to the instant claim, and the seizure and collection order of the plaintiff’s energy Maz, the provisional attachment order of the plaintiff and Eszin was delivered to Oone Star branch, the third debtor, and that, after the transfer of the claim, the plaintiff and Esz deposited the amount of the debt, the plaintiff and Esz deposited the amount of the debt, and subsequently notified the cancellation or withdrawal of the transfer of the instant claim to Oone Star branch with the consent of the plaintiff and Esz.

However, as acknowledged by the court below, if the seized claim at the time of seizure or provisional seizure by the plaintiffs had already been transferred from the debtor to the plaintiff Eul E, the seizure or provisional seizure order of the plaintiffs is all null and void, unless there are circumstances such as the transfer of the claim becomes null and void from the beginning, and the collection order based thereon also becomes null and void. Thus, the mere fact of the court below's reasoning that the debtor, the transferor of the claim, cancels or withdraws the assignment contract of the seized claim with the consent of the transferee of the claim cannot be deemed null and void and void and the provisional seizure of the claim cannot

On the other hand, the court below determined that the attachment or provisional attachment of the plaintiffs' attachment or collection order or provisional attachment is valid to the claim of this case. In so doing, the court below erred by misapprehending the legal principles on the validity of the attachment after the notification of assignment of claims with a fixed date, and the ground of appeal pointing this out is with merit.

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

Justices Yang Sung-tae (Presiding Justice)