In cases where the distribution procedure is completed for the deposit money, the effect of which is not recognized as an execution deposit due to the failure of the garnishee to deposit the full amount of the obligation, whether the repayment of the deposit is recognized (affirmative)

Article 248(1) of the Civil Execution Act

Supreme Court Decision 2005Da41443 Delivered on November 10, 2005

Plaintiff (Law Firm Apex, Attorneys Ansan-si et al., Counsel for the plaintiff-appellant)

Hanhwa Construction Co., Ltd.

Seoul High Court Decision 2011Na70529 decided September 19, 2012

The part of the lower judgment against the Defendant regarding the enforcement deposit is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the submission period).

1. As to the grounds of appeal on the amount of enforcement deposit

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant, who is the third debtor of the seizure and collection order of this case, deposited KRW 64,165,930 out of the amount of the seized claim and its interest, etc. on the ground that the defendant had already deposited KRW 63,90,614 among the amount of the seized claim and its interest, etc. before issuing the above collection order, etc., and thus the defendant's debt was extinguished due to repayment within the scope of the deposited amount of the execution. However, if the third debtor's deposit on the ground that the seizure is concurrent pursuant to Article 248 (1) of the Civil Execution Act, if the seizure is valid, the court below should deposit the full amount of the debt corresponding to the seized debt, which is the execution debtor company, 207,713,549 won.

However, even if the third obligor of the seizure and collection order did not deposit the total amount of the debt and the validity of the execution deposit is not recognized, if the payment of the deposited money is conducted after the deposit is accepted and the distribution procedure is completed, the payment of the deposited money shall be effective (see Supreme Court Decision 2005Da41443, Nov. 10, 2005, etc.). According to the records, according to the Jung-gu District Court Decision 2011No. 2011Ma18, the distribution procedure for the above execution deposit shall be initiated and the distribution procedure is completed, and the creditors, including the plaintiff, receive dividends and completed the distribution procedure. Thus, even if the amount deposited by the Defendant does not reach the total amount of the debt against TBS, the repayment shall be effective.

Nevertheless, the lower court erred by misapprehending the legal doctrine on the validity of the repayment of the deposit for execution, thereby adversely affecting the conclusion of the judgment.

2. As to the grounds of appeal on simultaneous implementation with the issuance of value-added tax invoices

According to the reasoning of the judgment below, the court below held that, in a lawsuit where TBS sought payment against the defendant for the payment of the price, the defendant may refuse payment of KRW 143,722,935 on September 21, 201, since EBS sent the tax invoice under the above conciliation and delivered it to the defendant on September 21, 2011, the defendant cannot exercise its right to simultaneous performance defense, and the defendant cannot exercise its right to make payment defense any further since EBS sent the tax invoice under the above conciliation and delivered it to the defendant on September 21, 2011, since EBS reached the defendant, the obligation to pay KRW 143,722,935 on the payment of the price to EBS is in a simultaneous performance relationship with the obligation to issue the value-added tax invoice (value-added tax on KRW 143,722,935) on EBS's defendant.

According to the records, EBS established conciliation in a situation where it was not possible for EBS to issue and deliver a tax invoice that allows EBS to deduct input tax on its claim for construction payment from the taxable period related to EBS’s claim for the above construction payment to the Defendant after a considerable period of time from the taxable period related to EBS’s claim for the above construction payment. In light of this, it is difficult to view that EBS’s tax invoice in the above conciliation refers to a tax invoice that can receive input tax deduction.

Considering these circumstances, the above determination by the court below is just as a result, and it did not err by misapprehending the legal principles on concurrent performance defense rights or tax invoices under the Value-Added Tax Act, thereby affecting the conclusion

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)