[1] Where a seizure and collection order has been issued on a claim, whether the debtor is disqualified as a party to a lawsuit seeking performance against the claim subject to seizure (affirmative) / Whether the matters concerning the standing to be a party constitutes an ex officio examination by the court (affirmative), and whether the parties may newly assert and prove them in the final appeal (affirmative)

[2] In a case where the third party obligor indicated the amount to be paid to the obligor as the seized claim according to the conclusion of the judgment, whether the substantive law, which is the subject matter of the lawsuit, constitutes the seized claim under the seizure and collection order (affirmative)

[1] Article 51 of the Civil Procedure Act, Article 229(2) of the Civil Execution Act / [2] Articles 225, 227, and 229(2) of the Civil Execution Act

[1] [2] Supreme Court Decision 2010Da40444 Decided April 28, 2011 (Supreme Court Decision 2018Da220178 Decided July 20, 2018 / [1] Supreme Court Decision 2007Da60417 Decided September 25, 2008

Busan Construction Co., Ltd. (Law Firm Duro, Attorneys Kim Han-chul et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Household, Attorneys Lee Tae-tae et al., Counsel for defendant-appellant)

Seoul High Court Decision 2015Na2073706 decided August 14, 2018

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

The defendant's grounds of appeal are examined.

1. Where there exists a seizure and collection order, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a lawsuit for performance against the claims subject to seizure. Matters relating to the standing to be a party as above are related to the requirements of the lawsuit, and the court shall investigate and determine them ex officio. Although the parties did not assert such matters by the time the arguments are closed at the trial, the court may newly assert and prove them in the final appeal (see, e.g., Supreme Court Decisions 2007Da60417, Sept. 25, 2008; 2018Da220178, Jul. 20, 2018).

Meanwhile, in a case where the third party obligor indicated the amount to be paid to the obligor as the seized claim according to the conclusion of the judgment, the claim under the substantive law, which is the subject matter of the relevant lawsuit, may be deemed as the subject matter of the relevant lawsuit, to constitute a claim subject to seizure and collection order (see Supreme Court Decision 2010Da40444 decided April 28, 20

2. The lower court: (a) determined that the Plaintiff, other than the construction cost, paid or paid by the Defendant for the instant construction project, agreed to settle and reimburse the Plaintiff; and (b) the Plaintiff guaranteed the Defendant’s obligation to pay the purchase price upon the Defendant’s request; and (c) accordingly, deemed that the Defendant is obligated to pay the remainder of the purchase price to the Plaintiff, which is the trustee guarantor, partially

However, the record reveals the following: (a) regarding “the amount of monetary claims that the Plaintiff would have received from the Defendant in the instant lawsuit until it reaches the claim amount; (b) the Nonparty received from October 13, 2015 the amount claimed as 42,906,336; and (c) the seizure and collection order of KRW 117,780,821 of the claimed amount on October 13, 2015; and (c) the seizure and collection order of KRW 31,787,090 of the claimed amount on November 16, 2015; and (d) the Mining Development Co., Ltd received the claim amount as 75,136,128 of the claimed amount on June 14, 2016; and (d) the seizure and collection order of each of the above claims and the collection order was served on the Defendant around that time.

Examining the above facts in light of the legal principles as seen earlier, the Plaintiff lost the standing to file a performance lawsuit against the seized claims, by serving the Defendant, who is the garnishee, with the seizure and collection order of each of the above claims. Therefore, the lower court needs to re-determine the scope of the Plaintiff’s standing to be the party.

Therefore, the judgment of the court below, which was made on the premise that the plaintiff has the standing to institute a performance suit as to the whole amount of settlement and advance reimbursement claims asserted by the plaintiff, cannot be maintained as is. The ground of appeal assigning this error is justified.

Meanwhile, the record reveals that, in addition to the above, the seizure and collection order was issued by the Plaintiff as the obligor and the third obligor, and the total amount of the claims subject to the seizure and collection order asserted by the Defendant as identical to the claims subject to the instant lawsuit exceeds the part in favor of the Plaintiff among the judgment below. As such, the part against the Plaintiff should be examined together with the reversed part on the ground that the scope of the Plaintiff’s standing has changed depending on whether the above seized claim is identical to the claims subject to the instant lawsuit, and the part against the Plaintiff should also be examined together with the reversed part on the ground as

3. Therefore, without further proceeding to decide on the Plaintiff’s grounds of appeal, the judgment of the court below is reversed, and the case is remanded 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 Jo Hee-de (Presiding Justice)