[1] Whether a creditor may file a lawsuit for collection against a third party debtor by obtaining a seizure and collection order under the Civil Execution Act regarding claims seized following the disposition on default (affirmative), and in such cases, whether a creditor may refuse a claim for collection by the above creditor or a claim for collection by an execution creditor based on the circumstance that the third party debtor is concurrent with seizure under the Civil Execution Act, based on the circumstance that the seizure is based on the wage and other claims with preferential right to payment under the Civil Execution Act (negative)

[2] Whether a garnishee may be exempted from liability by making a deposit for execution under Article 248(1) of the Civil Execution Act, either the execution creditor following the disposition on default or the creditor subject to the seizure and collection order in the civil execution procedure, who performed the obligation to one of the creditors subject to the seizure and collection order, or by claiming the extinguishment of the obligation to the repayment portion, or by making a deposit for execution under Article 248(1) of the Civil Execution Act (affirmative)

[1] Under the current law, the procedure for disposition on default and the procedure for civil execution are separate procedures, and there is no provision in the law regulating relations between two procedures, so one procedure cannot interfere with the other procedure, while each creditor is involved in the different procedure in both procedures.

Therefore, a creditor who has received a seizure and collection order under the Civil Execution Act may file a lawsuit against a third party obligor for a collection, even with respect to a claim seized according to a disposition on default, and the creditor who received a seizure and collection order under the civil execution procedure may file a lawsuit against a third party obligor for a collection. A third party obligor cannot refuse a creditor who received a seizure and collection order under the civil execution procedure solely on the ground that the seizure under the disposition on default prior to a seizure and collection order falls under competition with each other, and cannot refuse a claim by the creditor who received a seizure and collection order under the civil execution procedure based on the circumstances such as that the seizure under the civil execution procedure

[2] A garnishee may, in response to either of the execution creditors following a disposition on default or of creditors who received a seizure and collection order in civil execution procedures, repay the debt to one of the creditors who received a seizure and collection order, and claim the extinguishment of the obligation to the repayment portion, and may also be discharged by making a deposit for execution under Article 248(1) of the Civil Execution Act. In addition, if an execution creditor based on a disposition on default collects a seized claim against a third party obligor, the distribution procedure under the National Tax Collection Act is followed, as well as where the creditor who received a seizure and collection order in civil execution procedures collects the seized claim against a third party obligor, the amount collected pursuant to Article 236(2) of the Civil Execution Act shall be immediately deposited and reported the

[1] Articles 24 and 41 of the National Tax Collection Act, Articles 227, 229, 232, 235, and 249 of the Civil Execution Act, Article 38 of the Labor Standards Act / [2] Articles 227, 229, 232, 235, 236(2), 248(1), and 249 of the Civil Execution Act, Articles 24, 41, 80(1)2, 80-2, and 81(1) of the National Tax Collection Act

[1] Supreme Court Decision 88Da42 delivered on January 31, 1989 (Gong1989, 347), Supreme Court Decision 99Da3686 delivered on May 14, 199 (Gong199Sang, 1162) / [2] Supreme Court Decision 96Da5179 delivered on June 14, 1996 (Gong196Ha, 2176), Supreme Court Decision 2007Da29591 Delivered on September 6, 2007

Plaintiff

KMS Co., Ltd. (Attorney White-chul, Counsel for the plaintiff-appellant)

Daegu District Court Decision 2013Na1592 Decided July 24, 2013

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Under the current law, the procedure for disposition on default and civil execution procedure are separate procedures, and there is no provision in the law regulating relations between two procedures, so one procedure cannot interfere with the other, while each creditor in both procedures is entitled to participate in the different procedure by determining different procedures (see Supreme Court Decision 8Meu42, Jan. 31, 1989, etc.).

Therefore, under the Civil Execution Act, a creditor who has received a seizure and collection order may file a lawsuit against a third party debtor for a collection, even with respect to a claim seized by a disposition for arrears. A third party debtor cannot refuse a creditor who has received a seizure and collection order in civil execution procedures on the ground that the seizure and collection order conflicts with each other due to a disposition for arrears prior to a seizure and collection order. In addition, a creditor who received a seizure and collection order in civil execution procedures cannot refuse a claim for a collection by a creditor who has received a seizure and collection order in civil execution procedures on the ground that the seizure under civil execution procedures pursuant to the Labor Standards Act corresponds to a claim based on wages and other claims with preferential rights under the Labor Standards Act (see Supreme Court Decision 9Da3686, May 14, 199

However, the garnishee may assert the repayment of the obligation to either the execution creditor under the disposition on default or the creditor under the disposition on default, and the extinguishment of the obligation to the repayment portion, in response to either of the creditors subject to the seizure and collection order in the civil execution procedure, and may be discharged by making a deposit for execution under Article 248(1) of the Civil Execution Act (see Supreme Court Decisions 96Da5179, Jun. 14, 1996; 2007Da29591, Sept. 6, 2007). Furthermore, if the execution creditor under the disposition on default collects the obligation from the third debtor, as shown in the procedures for distribution under the National Tax Collection Act, if the creditor under the disposition on default collects the seized obligation from the third debtor during the civil execution procedure, the creditor under the disposition on seizure and collection order must deposit the amount collected under Article 236(2) of the Civil Execution Act and report the grounds therefor immediately.

B. citing the reasoning of the judgment of the first instance, the lower court determined to the effect that, even if Pyeongtaek Dok-si, Inc., Ltd. seized the instant claim against the Defendant, for the reason of delinquency in national taxes by the Plaintiff’s compulsory execution procedure, prior to the delivery of the instant seizure and collection order by the Plaintiff’s compulsory execution procedure, the Plaintiff may collect the instant claim, which was seized by the instant seizure and collection order.

Such determination by the court below is based on the legal principles as seen earlier, and there is no error of law by misapprehending the legal principles as to the validity of the seizure of claims based on a disposition on default.

On the other hand, Supreme Court Decision 2007Da33842 Decided November 13, 2008 cited as the ground of appeal is related to whether a third party obligor has profit in confirming the right to claim the payment of deposit in case where the third party obligor deposits pursuant to Articles 291 and 248(1) of the Civil Execution Act on the grounds that the seizure by a disposition for arrears and the provisional seizure by a civil execution procedure are concurrent, and it is not appropriate to invoke this case with some of the reasoning of the judgment.

2. Regarding ground of appeal No. 2

According to the reasoning of the lower judgment and the record, on November 3, 2011, 201, in the Seoul High Court 201Na53852 Lease Fee case between the case and the Defendant, the Defendant confirmed that “(i) the rent to the Defendant for the Defendant of the case is KRW 100 million. ② The Defendant waived the claim against the remainder of the money in addition to the above amount. ③ The Defendant and the case and the Defendant, rendered a decision in lieu of the adjustment, and confirmed as it is, as it is, the same.

In light of the language and text of the decision in lieu of the above conciliation, the defendant's obligation to pay KRW 100 million to the defendant's case known by the above decision is not fixed by the deadline, and the defendant shall be held liable for delay from the time of receiving the claim for performance.

Therefore, the defendant's argument that the above 100 million won damages for delay did not exist cannot be accepted. Thus, the judgment of the court below is not erroneous in the misapprehension of judgment as alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the 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 Kim So-young (Presiding Justice)