[1] The scope and applicable rate of damages for delay to be additionally deposited by a collection creditor who bears the obligation to deposit the collection amount and report the reason under Article 236 (2) of the Civil Execution Act, in addition to the collection amount to be additionally deposited

[2] Whether a creditor who received the whole order may demand a distribution against a creditor who has received the whole order before filing a report on collection (affirmative)

[1] Where a creditor who has received a seizure and collection order fails to file a report on the collection of claims subject to seizure from a third debtor even though the creditor has collected the claims, under Article 236(2) of the Civil Execution Act, the collection creditor shall deposit the collection amount immediately before the collection creditor files a report on the collection, and report the reasons therefor. In this case, the collection creditor shall deposit the collection amount in addition to the collection amount actually received from the third debtor and make a report on the reason therefor. The date and termination period of the seizure, etc., where there exists competition such as seizure, shall be from the date of receipt by the third debtor of the collection amount to the date of deposit and the due date after the reasonable period necessary for the report on the reasons thereof, and shall be from the date of receipt by the third creditor of the request for distribution to the third creditor without any competition such as seizure, etc. In this case, even if the collection creditor neglects to make a report on the collection to demand the collection until the collection date, the exclusive interest rate of the creditor shall be deemed to be the date of commencement of the above report on the collection amount of claims for collection.

[2] The purport of Article 247(2) of the Civil Execution Act stipulating that no demand for distribution shall be made after an assignment order has been served on a garnishee. The purport of the provision that no demand for distribution shall be made after the assignment order has been served on the garnishee, is that no demand for distribution made by a third party after the assignment order was transferred to the execution creditor in lieu of payment and was served on the garnishee in face value when the assignment order was served on the garnishee in the event that the assignment order became final and conclusive, deeming that the seizure claim was transferred to the execution creditor in lieu of payment and the assignment order was served on the garnishee in the face value. Therefore, the creditor ordered to make

[1] Articles 236(2), 247(1)2, and 252 subparag. 2 of the Civil Execution Act; Articles 379 and 397 of the Civil Act / [2] Articles 236(2) and 247(1)2 and (2) of the Civil Execution Act

[1] Supreme Court Decision 2004Da8753 decided Jul. 28, 2005 (Gong2005Ha, 1411)

The Bankruptcy Trustee of the Ulsan Northern Credit Cooperatives (Law Firm Gyeong, Attorneys Park Jong-tae et al., Counsel for the bankrupt)

Gyeongnam Bank Co., Ltd. (Attorneys Kang Byung-chul et al., Counsel for the plaintiff-appellant)

August 22, 2008

1. The defendant's collection money according to the Ulsan District Court 2004 Other 6297 claims seizure and collection order;

14,695,885 won and its equivalent shall be deposited in the above court at the rate of 5% per annum from June 13, 2007 to the date of deposit and performance of the private report, and the reason shall be reported.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant deposited 14,695,885 won according to the Ulsan District Court Order for the seizure and collection of claims and the amount equivalent to 5% per annum from December 16, 2004 to the service date of the copy of the complaint of this case, and 20% per annum from the next day to the day of the performance of the deposit obligation, with the above court. The defendant deposited the amount equivalent to 20% per annum from the next day to the day of the performance of the deposit obligation, and reported the reasons.

1. Facts of recognition;

The following facts are either disputed between the parties, or acknowledged in light of the whole purport of the arguments in each of the statements in Gap evidence 1-1, 2, 2, 3, 4, 5-1, 2, 6 through 9, 10-1, 2, 11, and 12.

A. On December 16, 1998, the U.S. credit cooperative prior to bankruptcy (hereinafter “U.S. credit cooperative”) concluded a mortgage agreement of KRW 26,000,000 with respect to the amount of 139 square meters (number omitted) set forth in the Seobong-dong (hereinafter “the instant real estate”) owned by the Nonparty as the obligor, and concluded a mortgage agreement of KRW 51,000,000 on November 8, 201, and completed the registration of the establishment of the neighboring mortgage.

B. After that, on November 9, 2001, the Ulsan Northern Bank loaned to the Defendant KRW 55,000,000 at the due date set at the rate of 8.5% of the interest rate and 22% of the delay compensation rate.

C. On the other hand, on December 7, 2004, Nonparty Korea National Housing Corporation expropriated the instant real estate for the housing site development project in Ulsan District District Court, and on the same day, the said Nonparty deposited KRW 49,703,000 to Ulsan District Court by making the said Nonparty as a deposit.

D. However, on December 9, 2004, the Defendant, on the ground that the garnishee was the Republic of Korea, received the seizure and collection order of the claim (hereinafter “instant collection order”) from the court 2004TT No. 6297, and on December 15, 2004, collected KRW 14,695,885 from the Republic of Korea, the garnishee, based on the above collection order.

E. On January 26, 2005, the Plaintiff received 35,007,115 won out of the deposit money based on the assignment order finalized, on the basis of the assignment order, on the basis of the subrogation right, by designating the garnishee as the mortgagee of the above non-party as the Republic of Korea as the Republic of Korea.

F. After all, the plaintiff is a creditor who has preferential right to payment in accordance with the subrogation doctrine on June 1, 2007, because the defendant did not report the collection even after collecting the money based on the collection order, as seen above, and applied for distribution in the procedure of execution of the claim under this court 2004TTT 6297, which was applied by the defendant, and the application for distribution reaches the defendant on June 12, 2007.

2. The parties' assertion and judgment

A. The plaintiff's assertion and judgment

(1) The plaintiff's assertion

The plaintiff asserts that the defendant, a collection creditor, has a legal obligation to deposit the collection amount and the damages for delay, if there is another creditor who demanded a distribution prior to the collection report on the collection of the collected claim. Thus, the defendant asserts that the defendant shall deposit the amount at the rate of 5% per annum under the Civil Act from December 16, 2004 to the delivery date of the copy of the complaint of this case from December 16, 2004 to the delivery date of the copy of the complaint of this case, and the amount at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the execution date of the deposit obligation, and report

(2) Determination:

(A) The defendant's obligation to deposit occurs

In cases where a creditor subject to a collection order has collected a claim subject to seizure from a garnishee and reported a collection under Article 236 (1) of the Civil Execution Act by the time of such collection, and where there has not been any other seizure, provisional seizure, or demand for distribution pursuant to Article 236 (1) of the same Act, the claims subject to seizure shall be extinguished within the scope of such collection, unless there exists any other seizure, provisional seizure, or demand for distribution until such time, and where the total amount of the execution claims has been repaid after investigating the appropriation relationship, etc. for the collection amount, the execution court shall deliver to the debtor with executory exemplification, and where a part of the claims has been repaid, the execution of the claims shall be terminated by taking measures, such as making a statement on the executory exemplification, etc.

However, in cases where a creditor who has received a seizure and collection order fails to file a report on collection even though the creditor has collected the seized claim from the garnishee, the other creditor still may demand a distribution in the execution procedure of the above claim (Article 247(1)2 of the Civil Execution Act). As such, in cases where a creditor has a demand for distribution from another creditor before the collection creditor files a report on collection, the collection creditor shall deposit the collected amount immediately and report the reason therefor to the court (Article 236(2) of the Civil Execution Act). The execution of the claim by the deposit by such collection creditor shall enter the distribution procedure (Article 252 Subparag. 2 of the Civil Execution Act).

While the Defendant, based on the instant collection order on December 15, 2004, collected KRW 14,695,885 from the Republic of Korea, the garnishee, based on the collection order of this case, and did not report the collection even after the collection, the Plaintiff filed an application for a demand for distribution on June 1, 2007, and the above application for demand for distribution reached the Defendant on June 12, 2007, as seen earlier, the Defendant is obligated to deposit the money collected with the court and report the reasons therefor.

(B) Scope of the Defendant’s money to be collected

On the other hand, as to whether the defendant, who is the collection obligee, has the obligation to deposit the collection amount in addition to the collection amount paid by the third obligor in fact and make a report on the reason thereof, the health deposit is required, and Article 236(2) of the Civil Execution Act provides that when the collection obligee has made any other seizure, provisional seizure, or demand for distribution prior to the report on the collection, the creditor shall deposit the collection amount and report the reason therefor immediately. In the case of competition with the seizure, etc., the collection obligee shall collect the claim from the third obligor for all the creditors taking part in the seizure, etc. on the basis of the execution court's authorization. Thus, as in relation to the debtor, the obligor shall have the duty of due care of a good manager to make a deposit and report on the reason immediately after receiving the collection amount, and in this case, the starting date and the closing date of the damages for delay shall be from the third obligor to the date of deposit and report on the reason after receiving the collection amount from the third obligor.

However, as in this case, if only a creditor of demand for distribution has made a report of demand for distribution without any concurrence of seizure, etc., it shall be reasonable to see that the date when a considerable period of time required for deposit and report of reasons for the request for distribution has elapsed from the date when the notification of demand for distribution reaches the creditor of the collection. This is because, in such cases, even though the creditor of the collection neglected a report of collection until the date when the collection was made by the creditor of the claim for distribution, and compared with the cases where the seizure, etc. competes, the debtor of the collection order or the creditor of demand for distribution has neglected a report of collection until the time when the collection was made by the creditor of the above collection due to failure to report of collection, the damage equivalent to the delay damages for the collection from the time when the creditor of demand for distribution receives a notice of demand for distribution from the time when the collection has made a report of demand for deposit and report of reasons for the collection from the time when the collection creditor has made a report of demand for distribution under Article 247 (1) 2 of the Civil Execution Act, it shall not be deemed that the above damage from the date when the report of demand for collection was made.

In addition, as long as the theoretical ground for ordering additional deposit of the above damages for delay is found in the liability for damages, 5% per annum under Article 379 of the Civil Act, which is a special provision on non-performance of monetary obligations, shall be applied to the interest rate applicable to the calculation of damages for delay that the collection creditor has to deposit additionally. Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings is a special provision on the statutory interest rate from the day following the date of delivery of the complaint or the day following the date of the pronouncement of the ruling in the case where the court decides to order performance of all or part of the monetary obligations.

(C) Sub-decisions

Therefore, barring special circumstances, the defendant shall deposit with the above court the amount equivalent to 14,695,885 won under the above collection order, and the amount equivalent to 5% per annum from June 13, 2007 to the date of performance of the report on deposit and reason, which can be said to be the time when the notice on demand for distribution reaches the collection creditor, and from the time when the notice on demand for distribution reaches the collection creditor, the amount equivalent to 14,695,85 won per annum

B. The defendant's assertion and judgment

(1) First of all, the defendant claims in this case on the ground that the seizure order of the plaintiff after the completion of the collection by the defendant was served on the garnishee, and that the effect of the seizure does not extend to the collection amount, and that it is denied as a separate demand for distribution on the seizure without its validity. Thus, as seen earlier, the plaintiff claims in this case on the ground that the seizure, etc. was competing on the ground that the seizure, etc. was completed on January 26, 2005 or after the completion of the collection order, or that the seizure order was made after the completion of the collection order, not on the ground that it was effective as a demand for distribution, but on the ground that it was a demand for distribution before the collection report by the defendant. Thus, the above argument by the defendant does not constitute a

(2) Next, since Article 247(2) of the Civil Execution Act provides that the defendant shall not demand a distribution after the assignment order has been served on the garnishee, it is unreasonable for the plaintiff to make a demand for distribution again after the completion of the execution by receiving the seizure and the assignment order, and even if it is not a domestic affairs, since the defendant's execution of the plaintiff's seizure and assignment order as to the remaining amount collected by the defendant after the completion of collection based on the above collection order, it is unreasonable for the plaintiff to make a demand for an additional distribution.

However, in a case where an assignment order has become final and conclusive under Article 247(2) of the Civil Execution Act, the purport is that a demand for distribution made by a third party after an assignment order was delivered to a third party after deeming that a seizure claim was transferred to an execution creditor instead of payment, and the assignment order was not effective after the assignment order was delivered to a third party obligor. Thus, as in the case of this case, the creditor subject to an assignment order does not prohibit the creditor subject to an assignment order from making a separate demand for distribution before he files a collection report against the collection right holder with respect to a claim whose satisfaction has not been satisfied through the whole order.

In addition, upon the entry into force of an assignment order, the execution claim equivalent to the face value of the entire claim is retroactively extinguished, and does not terminate the total execution claim. In light of the purport of the entire pleadings in the statement in Gap evidence No. 4, the plaintiff can be acknowledged on March 10, 2005 that the plaintiff held the loan claim against the above non-party (the principal of the loan 34,39,071, interest 4,156,751), even on March 10, 2005, which was after the plaintiff received the full payment based on the above seizure and assignment order, as to the remaining amount after the collection based on the above collection order was completed. In this case, the plaintiff, who has preferential payment right in accordance with the subrogation doctrine, can make a demand for distribution of the above loan claim against the defendant who had not completed the collection report after collecting the debt in accordance with the collection order. Thus, the above assertion by the defendant is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims of the plaintiff are without merit, and they are dismissed. It is so decided as per Disposition.

Judges Magras