In the event that a lessor offsets against the lessee’s claims, such as rent, etc., the scope of the automatic claim that may be set up against the set-off against the obligee;

Where a lessor, who is the garnishee, offsets against all the creditors of the claim for return of the lease deposit with the claim such as rent against the lessee, etc., if he/she intends to oppose all the creditors of the seizure and assignment, the automatic claim against the lessee of the lessor should have arrived at the set-off point at the time of delivery of the seizure and assignment order.

Articles 492 and 498 of the Civil Act; Articles 561 and 563 of the Civil Procedure Act

Supreme Court Decision 87Da68 delivered on June 9, 1987 (Counterclaim) (Gong805No 1147)

Orala

00 00 00

Busan District Court (86Gadan2690)

1. Revocation of the original judgment;

2. The defendant shall pay to the plaintiff 2,701,387 won with 25% interest per annum from June 3, 1986 to the full payment rate.

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

각 그 성립에 다툼이 없는 갑 제1호증(송달증명원), 갑 제2호증(채권압류 및 전부명령), 을 제2호증(임대차계약서)의 각 기재에 변론의 전취지를 종합하면, 소외 김종근은 1985.5.7. 피고로부터 부산 동래구 연산동 1954의 4 소재 슈퍼마ㅋ 건물 중 1층 약 30평(이하 이 사건 건물부분이라 한다)에 관하여 임차보증금 5,000,000원, 임료 월금 330,000원, 임차기간 4개월로 정하여 임차하는 계약을 체결하고 피고에게 위 보증금 5,000,000원을 직급함으로써 그 보증금 반환채권을 가지게 된 사실, 그런데 원고는 위 김종근에 대한 부산지방법원 85가단982호 사건의 집행력있는 판결정본에 기하여, 1985.7.31. 같은 법원 85타10562,10563호 로써 위 김종근의 피고에 대한 위 금 5,000,000원의 임차보증금 반환채권 중 금 2,701,387원에 관하여 압류 및 전부명령을 받았고 그 명령은 같은 해 8.2. 피고에게 송달된 사실을 인정할 수 있고 달리 반증이 없으며, 한편 피고가 위 김종근을 상대로 위 임대차 목적물인 이 사건 건물부분의 명도를 구하는 소송을 제기하여 1986.1.24. 그 승소판결을 받은 바 있는데, 그 후 같은 해 5.12. 그 명도를 받기에 이른 사실에 대하여는 그 당사자 사이에 다툼이 없다.

Accordingly, in relation to the plaintiff's filing of the payment of the full payment to the defendant, the defendant argues that the payment of the full payment should be offset by the defendant's claim of KRW 340,00,000, the payment of the successful bid price of KRW 4,080,00, the payment of the overdue charge of KRW 612,515, the water fee of KRW 16,430, the payment of the overdue charge of KRW 20,000, and the cost of the interior restoration of the building of this case, KRW 1,33,750.

First, as to the successful bid cost, the defendant tried to execute it by obtaining a favorable judgment in the lawsuit claiming the surrender of the part of the building in this case against the above Kim Jong-sung, but the defendant failed to execute it as the relation where the above Kim Jong-tae's goods are left alone in the above building. When another creditor of the above Kim Jong-sung applied for a compulsory auction for the above goods by another creditor of the above Kim Jong-sung, the defendant's claim for damages against the above amount of the successful bid price was made by selling the above goods at the auction price of 340,000 won for the purpose of ordering the above building. However, even if the grounds for the above argument are acknowledged, since the defendant received the above goods at his own discretion without any duty, it cannot be deemed that the defendant acquires the damage claim against the above successful bid price of the above Kim Jong-sung, and therefore the defendant's claim for offsetting the above successful bid cost is groundless.

The following facts are that the defendant did not pay monthly rent of 4,080 won (340,00 won) from June 1985 to May 1986 with respect to the above 3rd class Kim Jong-chul's claim, and the above 3rd class Kim (340,00 won x 12) monthly rent of 612,515 won (14,560 won per June, 78, 195, 15, 15, 430 won per month, 60 won, 15, 60 won, 60 won, 60 won, 70 won, 60 won, 60 won, 60 won, 60 won, 157, 65, 870 won, 10, 470 won, 47, 750 won, 760 minutes, 160 won, 360 percent, 460 percent, 196.

However, I think of whether each of the above claims can be offset against the above claim for the lease of this case on the ground that in general, if the garnishee of the above attachment and assignment order intends to offset against his/her opposing claim against his/her obligor, the above opposing claim should have reached an offset level at the time of receiving the delivery of the attachment and assignment order, and in this case, the attachment and assignment order was served on the defendant on August 2, 1985, the above overdue claim of 701,935 won [340,00 won x 2/31] from June 2, 1985 to August 2, 198, 2000 won [the above overdue claim of 200,00 won x 2/31), 200, 482 won x 2085, 3705 won x 270,585 won x 285,785 won x 705,785.14,285.

In addition, even if the above-mentioned claim is set off against the equivalent amount of the above-mentioned claim to the defendant in Kim Jong-sung, the remaining amount of the claim for return of KRW 5,00,000,00 against the above-mentioned Kim Jong-sung is clear in calculating the amount exceeding KRW 2,701,387 of the plaintiff's claim for the seizure of this case as the plaintiff's claim for return of KRW 4,094,798. Thus, the plaintiff's claim for this case cannot be rejected as the defendant's claim for the above

Therefore, the plaintiff's claim of this case seeking the payment of damages for delay at an annual rate of 25 percent per annum from June 3, 1986 to the date of delivery of a copy of the complaint of this case as to the above 2,701,387 won and the above amount shall be accepted as reasonable. Since the original judgment with different conclusions is unfair, the original judgment is revoked, and it is so decided as per Disposition by the application of Articles 96 and 89 of the Civil Procedure Act, Article 199 of the Civil Execution Act, and Article 6 of the above Special Act.

Judges Cho Jong-dae (Presiding Judge)