Requirements for set-off by a garnishee against the debtor of a provisional seizure

Where a garnishee who has been ordered to make a provisional seizure has a opposing claim against a garnishee of provisional seizure, if both claims are set-off at the time when provisional seizure takes effect, or if the opposing claim does not reach the due date at the time of seizure, it shall be the case where the corresponding claim, which is the seized claim, arrives at the due date at the same time or higher than the due date.

Articles 492 and 498 of the Civil Act

Supreme Court en banc Decision 73Da518 delivered on November 13, 1973, 73Da1052 delivered on February 12, 1974

Plaintiff

Cho Heung Bank Co., Ltd., Counsel for the defendant-appellee

Seoul High Court Decision 81Na2586 delivered on January 21, 1982

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the Plaintiff: (a) filed an application for provisional attachment against the Nonparty on December 20, 198; (b) on December 1, 198, with the Seoul Special District Court No. 80Ka4531; (c) on December 23, 1980 for provisional attachment against the Defendant who is the said garnishee; (d) on December 28, 1980, the said provisional attachment order was served on the Defendant on December 23, 1980; and (e) on the basis of an executory exemplification of the said court’s claim for payment of promissory notes, the said court’s 81No2874 and 2875; and (e) on April 10, 1981, the Nonparty was issued an order for provisional attachment as well as on March 15, 1980; and (e) on the date of the said provisional attachment order issued by the Nonparty 2, the amount of the said provisional attachment order within KRW 9700,000,000.

2. However, according to Article 498 of the Civil Act, a garnishee who has received an order prohibiting payment cannot set up a defense against a creditor who has applied for such order as an offset by claims acquired thereafter, and in relation to Article 492 (1) of the same Act regarding the requirements for offsetting, in cases where a garnishee who has received an order of provisional seizure has a opposing claim against a debtor who has received an order of provisional seizure, both claims are set-off at the time of the provisional seizure entry into force, or where the opposing claim has not arrived at the time of seizure, it shall be the case where both claims are set-off at the time of the provisional seizure entry into force, or at the same time when the repayment period has arrived at the time of the execution period of the claim of the non-party which is the attached claim, or at the same time after the execution period of the claim of the non-party who has been set-off after the expiration of the execution period of the non-party's independent claim of the non-party which has not arrived at the time of the provisional seizure agreement. This is because the court below acknowledged that the non-party's independent claim of set-party's claim of set-party.

3. Ultimately, the appeal is dismissed on the grounds that the arguments are without merit. The costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Kang Jong-young (Presiding Justice)