[1] In a case where a judgment of a provisional execution ordering a revocation of provisional seizure against a claim was rendered but the execution of provisional seizure against the claim is not revoked, whether it is valid for a garnishee to pay wages and retirement allowances provisionally seized to the debtor (negative)

[2] Whether an obligee, who had an external appearance as shown by the judgment of the sentence of provisional execution that revokes provisional seizure, constitutes a quasi-Possessor of the claim that had an external appearance, without limitation (affirmative)

[1] Even if there is a judgment ordering cancellation of provisional seizure, the execution of provisional seizure is still effective unless the execution court submits an original copy of the judgment to the execution court and applies for cancellation of provisional seizure, and the execution of provisional seizure is in accordance with the procedure for cancellation of provisional seizure (in the case of provisional seizure, it shall be served on the third debtor by the ordinary execution court.). Even if the first instance court in the case of provisional seizure which is not the execution court delivers the original copy of the above provisional execution declaration to the third debtor who is not the party to the lawsuit, the execution of provisional seizure cannot be deemed to have been cancelled as a matter of course. Thus, it cannot be deemed that the third debtor pays the wages and retirement allowances which are provisionally seized to the debtor is a valid repayment.

[2] The repayment to quasi-Possessor of a claim is effective when the person performing the obligation is acting in good faith and without negligence. Here, quasi-Possessor of a claim refers to a person who has an appearance to believe that the person performing the claim has a legitimate authority to exercise the claim under the general transactional norms, and from the standpoint of the person performing the obligation, it can be deemed that the creditor who had an appearance, which is likely to have an appearance, can again exercise the claim without restriction, by being sentenced to a provisional attachment that is subject to the provisional attachment and is subject to the restriction on collection of the claim and other disposal acts.

[1] Article 49 subparag. 1, Articles 50, 288, and 291 of the Civil Execution Act; Articles 160(1) and 218 of the Civil Execution Rule / [2] Article 470 of the Civil Act

Plaintiff (Law Firm Lee Il-il, Attorneys Kim Sung-sung et al., Counsel for plaintiff-appellant)

Samsung Electronic Co., Ltd.

Seoul High Court Decision 2002Na69855 delivered on April 22, 2003

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

1. In full view of the admitted evidence, the court below rendered a provisional attachment order of 500 million won against the non-party to the Seoul District Court on September 10, 1999 to the effect that the non-party's provisional attachment was revoked on September 8, 200 and that the non-party's provisional attachment order of 50 million won against the non-party was rejected on October 28, 1999 and the provisional attachment order of the above wages and retirement allowance claim against the defendant was issued on November 9, 199 (9Ka657). Since the non-party's provisional attachment order of 30 billion won against the non-party was revoked on September 26, 200 and the provisional attachment order of 300 won against the non-party's above provisional attachment was rejected, the court below ruled that the non-party's provisional attachment order of 40 billion won against the non-party's above provisional attachment was invalid on September 26, 2000 as well as the non-party's provisional attachment order of 26 months.

2. Even if there is a judgment ordering cancellation of provisional seizure, the provisional seizure execution is still effective, unless the execution court submits an original copy of the judgment to the court of execution while submitting it to the court of execution and applies for cancellation of provisional seizure, and the execution of provisional seizure is not in accordance with the procedure for cancellation of provisional seizure (in the case of provisional seizure, it shall be served on the third debtor by the ordinary execution court's notification of cancellation of provisional seizure execution). Even if the first instance court in the case of provisional seizure which is not the court of execution delivered the original copy of the above provisional execution declaration to the third debtor who is not the party to the lawsuit, the execution of provisional seizure cannot be deemed to have been cancelled as a matter of course. Thus, the judgment of the court below that deemed the defendant to have paid the wages and retirement allowances attached to

Meanwhile, repayment to quasi-Possessor of a claim has an effect to extinguish the claim in good faith and without negligence. Here, quasi-Possessor of a claim refers to the person who has an appearance to believe that he has legitimate authority to exercise the claim in light of the general transactional concept. The creditor who appears to be able to exercise the claim again due to provisional attachment and is subject to the declaration of provisional execution to cancel provisional attachment and may be deemed to be quasi-Possessor of a claim without restriction. Thus, in principle, the lawsuit of objection against provisional attachment of a claim belongs to the exclusive jurisdiction of the court which actually issued provisional attachment of the claim and the revocation of provisional attachment of the claim also belongs to the court which actually issued the provisional attachment of the claim. Even if the debtor applies for revocation of provisional attachment of the claim, it is not necessary to inform the non-party of the provisional attachment cancellation notice prepared by a Junior Administrative Officer to the third party and to pay the original copy of the claim in this case under the premise that the non-party was not aware of the facts of the above provisional attachment and the non-party's legal reasoning as to the above provisional attachment of the claim.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be borne by the plaintiff who is the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)