[1] Where a collection order for the claim is issued before the judgment on the performance of the first claim becomes final and conclusive, the legality of the lawsuit for the performance (i.e., additional law) and the validity of the judgment on the original claim rendered by the garnishee of the defendant in the process of the lawsuit, without asserting and proving the collection order (negative)

[2] In a case where the execution court erred in the grounds for the obstruction of execution and proceeds in the course of compulsory execution, whether the execution creditor who seized the execution claim may assert the extinction of the execution claim to the creditor who seized the execution claim (negative)

[3] In a case where an execution obligor of an assignment order that became final and conclusive in form receives a claim from a genuine obligee for the performance of an execution claim, whether the obligee may claim the effect of the assignment order as repayment to a quasi-Possessor of the claim (affirmative)

[1] Where there exists a seizure and collection order, only the collection obligee may file a lawsuit for performance against the third obligor, and the obligor loses the standing to file a lawsuit for performance against the garnishee. Thus, even if the obligor files a lawsuit for performance against the third obligor only after the collection order is issued, not only is the case where the obligor files a lawsuit for performance against the third obligor, but also the obligor files a lawsuit for performance before such order becomes final and conclusive, the lawsuit for performance is unlawful and dismissed as the lawsuit filed by the obligor against the third obligor. Even if the third obligor files a lawsuit for performance in the process of the lawsuit without submitting any allegations and supporting documents as to the existence of the collection order, even if the judgment was rendered on the principal claim without submitting any allegations and supporting documents, it cannot affect the rights or legal relations of the third obligor which are the object of the lawsuit, and thus, the judgment becomes null and void as it does not affect the genuine rights

[2] Where an execution court has commenced a compulsory execution with excessive grounds for the obstruction of execution, the execution obligor may file an objection, etc. against the execution, and even if the execution obligor fails to take such measures and the execution claim has been realized by continuing compulsory execution, the execution obligor may not claim the extinction of the execution claim against the creditor of the execution obligee who seized the execution claim.

[3] Where an assignment order of a claim becomes final and conclusive and is served on the garnishee, the performance is deemed to have been performed by the debtor (Article 231 of the Civil Execution Act), but the performance is merely merely to express that the original claim is extinguished and that only the entire claim remains. This is not a voluntary performance as part of compulsory execution, and thus, the provisions on repayment under the Civil Act cannot apply to the execution of a claim. However, in such a case, since an execution obligor, who is deemed to have been discharged according to an assignment order established in form, becomes entitled to a claim again from the genuine obligee, the risk of double payment is denied. Thus, even if the performance is not a voluntary performance, it can be recognized as having been performed by applying Article 470 of the Civil Act, unless it is contrary to its nature, unless it is contrary to its nature. However, the performance according to an assignment order is null and void.

[1] Article 51 of the Civil Procedure Act, Article 229(2) of the Civil Execution Act / [2] Articles 223 and 227 of the Civil Execution Act / [3] Article 231 of the Civil Execution Act, Article 470 of the Civil Act

[1] Supreme Court Decision 99Da23888 delivered on April 11, 2000 (Gong2000Sang, 1170) / [2] Supreme Court Order 2000Ma5221 delivered on October 2, 200 (Gong200Ha, 2373)

Busan C&C Co., Ltd. (Attorneys Park Jong-chul et al., Counsel for the plaintiff-appellant)

A principal offender (Law Firm Barun, Attorneys Jeong Jin-jin et al., Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2004Da55491 Decided March 23, 2006

November 9, 2006

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to be paid shall be revoked.

The defendant shall pay to the plaintiff 52,843,847 won with 5% interest per annum from December 27, 2004 to November 23, 2006 and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total cost of a lawsuit shall be four minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

4. The portion to be paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the court of first instance is revoked, and the defendant shall pay to the plaintiff 5,600,000 won with 20% interest per annum from the date on which the copy of the complaint of this case was served to the date on which the copy of the complaint of this case was served.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking account of the whole purport of the pleadings in each entry in Gap evidence 1 to 3, Eul evidence 1 to 1-2, Eul evidence 2-1, 2, and Eul evidence 3 to 7.

A. On July 18, 2001, the Defendant entered into a contract for the construction of Pyeongtaek Comprehensive Construction Co., Ltd. (hereinafter referred to as “ordinary Comprehensive Construction”) with respect to the new construction of Sungdong-dong 1, Seongdong-gu, Seoul, by setting the contract amount of KRW 1.7 billion and the construction period from July 25, 2001 to May 24, 2002.

B. On February 2003, average construction continued to be executed by the end of the agreed period on the grounds of poor performance, etc. of civil engineering works. The Defendant independently performed interior construction and finishing construction works in parallel with the ordinary comprehensive construction works, and obtained approval for the use of the instant building from the Administrator of Seongdong-gu on March 18, 2003, and completed registration of preservation of ownership in the name of the Defendant on March 26, 200.

C. When the construction of the building of this case was completed as above, the construction of the building of this case claimed that the construction cost of this case was KRW 569,855,330, and was decided by provisional seizure as the Dong Branch of the Seoul District Court on April 21, 2003 (it was changed from February 1, 2004 to the Seoul East East District Court). Accordingly, the provisional attachment registration was completed, and the execution of the provisional attachment was revoked by the Defendant on April 30, 2003.

D. In addition, on April 9, 2003, the ordinary comprehensive construction filed a lawsuit against the defendant on April 9, 2003 with the Dong Branch of Seoul District Court 2003Gahap3292, and on October 22, 2004, the above court rendered a judgment in favor of the part of the judgment in favor of the court ordering the payment of 90,601,634 won remaining after deducting 121,00,000 won for non-construction cost and damages for delay caused by defect repair and 198,90,00 won for delay (hereinafter “the judgment of the first instance of this case”).

E. On January 10, 2006, the first instance judgment of this case appealed in the ordinary comprehensive construction and the Defendant’s both parties appealed in this Court No. 2004Na87178. On January 10, 2006, the court accepted part of the Defendant’s claim on the compensation for delay and sentenced the Defendant to pay the remainder of KRW 52,843,847 after deducting the claim, as construction cost, and the remaining amount of KRW 52,843,847 after deducting the compensation for delay. The both parties appealed in the Supreme Court Decision No. 2006Da201777, but all these appeals were dismissed on June 28, 2006, and thus the said appellate judgment became final and conclusive as it is.

F. Meanwhile, on September 14, 2004, before the judgment of the court of first instance was rendered, the plaintiff applied for a seizure and collection order as to KRW 55,600,000, out of the claim for construction payment against the defendant of the above ordinary general construction (hereinafter "the claim for construction payment of this case"), based on the executory exemplification of the payment order in the Seoul District Court's Dong Branch Branch of Seoul District Court case 2003 tea27872 on September 14, 2004, which was before the judgment of first instance was rendered. The above court accepted the above application on September 16, 2004, and issued the seizure and collection order (hereinafter "the seizure and collection order of this case"), and the decision was served on the defendant, who is the debtor on October 18, 2004, and confirmed at that time.

G. On the other hand, in accordance with the above judgment that was rendered by a provisional execution sentence by a person who was sentenced to the judgment of the first instance court of this case, the general construction was ordered by the above judgment, and on March 15, 2005, with respect to the right to claim recovery of KRW 104,092,589, which is the balance of the above provisional seizure release release deposit money by the Seoul East Eastern District Court 2005TTTT1417, the debtor and the third debtor were ordered to seize and all claims.

H. However, around that time, the Defendant received the above claim attachment and assignment order (hereinafter “instant assignment order”) and did not raise any objection thereto, and the above decision became final and conclusive as it is, and accordingly, the ordinary comprehensive construction was made final and conclusive on April 20, 2005 at KRW 93,649,529 out of the above provisional attachment release release deposit, and appropriated it for the repayment of the instant claim for construction payment.

2. The parties' assertion

The plaintiff is the cause of the claim of this case. (1) The defendant is obligated to pay the construction price of this case to the plaintiff according to the seizure and collection order of this case. (2) Since the ordinary comprehensive construction cannot dispose of the claim for the construction price of this case according to the above seizure and collection order of this case, and it is also prohibited from repayment for the defendant's ordinary comprehensive construction, the third debtor. Thus, the ordinary comprehensive construction is subject to seizure and collection order of the defendant's claim for provisional seizure release release release release deposit of this case against the Republic of Korea based on the judgment of the first instance court of this case in the provisional execution declaration book, and receives provisional seizure release deposit of this case, and accordingly, it seems that the claim for the construction price of this case against the defendant of ordinary comprehensive construction is extinguished, the defendant cannot assert the effect of extinction of the above

In regard to this, the defendant (1) asserts that the plaintiff's claim for collection was unfair since the claim of this case was made in full in accordance with the assignment order of this case, which was made in accordance with the valid judgment of the first instance, and that even if the assignment order of this case is null and void, it is nothing more than that of the defendant actively paid the construction price of this case, but it was performed through compulsory execution procedure, and there is no negligence on the part of the defendant, and therefore, it is valid as repayment to quasi-Possessors of this case, and therefore, the claim of this case for construction price

3. Judgment by issue

(a) Existence of the obligation to pay the collection amount;

According to the facts acknowledged above, the construction price of this case to be paid by the defendant to the ordinary comprehensive construction shall be KRW 52,843,847, and the defendant shall be liable to pay the above construction price in full to the plaintiff, the collection obligee, unless there are special circumstances such as the effective repayment of the seized construction price.

B. Validity of the assignment order of this case and whether the claim for construction price is extinguished

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 seized claim (see, e.g., Supreme Court Decision 9Da23888, Apr. 11, 2000). Thus, even in cases where the debtor files a lawsuit for performance against the third debtor only after the collection order was issued, but the lawsuit for performance was first filed by the debtor, but the lawsuit for performance was first filed by the debtor, but before such order became final and conclusive, all of the lawsuit for performance filed by the debtor must be dismissed as a lawsuit filed by the non-qualified party, and even in cases where the third debtor files a lawsuit for performance without submitting any assertion and evidentiary materials as to the existence of the collection order in the process of the lawsuit, even if the judgment was rendered on the merits without submitting any evidentiary and supporting materials, this is a judgment by a person who does not have the right to manage and dispose of the rights or legal relations for the purpose of the lawsuit, and such judgment does not affect the genuine rights and obligations of the party.

In addition, in case where a creditor of execution creditor seizes, provisionally seizes or provisionally seizes the execution claim indicated in the executive title, or provisionally prohibit the execution creditor from taking an action such as collection and transfer by the execution creditor and the debtor's performance cannot be set up against the creditor of the execution creditor. Thus, the execution agency cannot execute the execution unless the seizure, etc. is rescinded (Supreme Court Order 200Ma5221 Decided October 2, 2000). Thus, if the execution court starts compulsory execution with the above reasons, even though the execution creditor did not take such measures, the execution debtor can seek removal by raising an objection against the execution, etc., and if the execution creditor starts compulsory execution, even if the execution claim is realized because the execution debtor did not take such measures, the execution debtor cannot assert the extinction of the execution claim against the creditor who seized the execution claim.

Therefore, as to whether the claim for the construction price of this case has been extinguished in accordance with the assignment order of this case, the judgment of the first instance and the judgment of the appellate court concerning the construction price of this case between the defendant were all rendered after the plaintiff's seizure and collection order of this case. Although the appeal against the above appellate judgment was dismissed and the judgment of the appellate court became final and conclusive between the defendant, the above judgment of the first instance and the judgment of the appellate court cannot be recognized as valid since it was based on the lawsuit for ordinary comprehensive construction without standing as a party. Therefore, the assignment order of this case, which was based on the above judgment of the first instance, which was null and void, is also null and void. Meanwhile, even in terms of the legitimacy of compulsory execution, the assignment order of this case, which was based on the execution claim of the construction price of this case, was made through the application of ordinary comprehensive construction prohibited from its collection and transfer due to the preceding seizure and collection order of this case, it is unlawful as it violates the above seizure and collection order.

Therefore, the validity of the assignment order of this case cannot be recognized against the plaintiff, who is a collection creditor, and the defendant cannot oppose the plaintiff, which is a collection creditor, on the ground of the extinguishment of the claim based on the above assignment order. Thus, the defendant's assertion that the claim for the construction price of this case was extinguished due to the effect of the assignment order of this case cannot be accepted.

C. Whether reimbursement is made to quasi-Possessor of the claim

In cases where an assignment order of a claim is confirmed and is served on the garnishee, the obligor is deemed to have discharged his/her obligation (Article 231 of the Civil Execution Act), but it is nothing more than expressing that only the original claim is extinguished and the entire claim remains. This is not a voluntary performance as part of compulsory execution, and thus, the provisions concerning repayment under the Civil Act cannot be applied. However, in such cases, where an execution obligor, who is recognized to have discharged pursuant to an assignment order established in form, becomes entitled to a claim again from the true obligee, the risk of double payment would be denied. Thus, even if it is not a voluntary payment, it may be recognized as a repayment with respect to a quasi-Possessor by applying Article 470 of the Civil Act, unless it is contrary to its nature, unless it is contrary to its nature. However, in such cases, where the execution obligee becomes aware that he/she is not a real right holder, the performance according to

Therefore, according to the health expenses, the evidence cited above and the records of this case as to whether the Defendant’s repayment under the assignment order of this case’s validity as repayment to quasi-Possessors, it can be acknowledged that the Defendant served the Plaintiff’s seizure and collection order on October 18, 2004, which was prior to the determination of the assignment order of this case, and served the Defendant’s delivery of a copy of the complaint seeking construction payment based on the above collection order on December 27, 2004. If the facts are identical to this, the Defendant was well aware that the Plaintiff, who had already been issued a seizure and collection order on the claim of this case’s construction payment at the time of receiving the assignment order of this case’s whole, was the genuine right holder and the ordinary comprehensive construction cannot seek the payment of the above construction payment against the Defendant. Accordingly, the Defendant’s repayment under the assignment order of this case’s cannot be effective against the Plaintiff. Accordingly, the Defendant’s above assertion also rejected

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 52,843,847 won of the construction cost of this case and damages for delay at the rate of 52,843,847 won and 20% per annum under the Civil Act until November 23, 2006, which is the date of the ruling of the court of first instance, where it is deemed reasonable for the defendant to dispute about the existence and scope of the obligation as requested by the plaintiff, since March 18, 2003 when the copy of the complaint of this case was delivered, as requested by the plaintiff, as the construction work of this case was completed. Thus, the plaintiff's claim of this case of this case is justified within the scope of the above recognition, and the remaining claims shall be dismissed. Accordingly, the judgment of the court of first instance which affected the conclusion of the judgment of first instance, which accepted part of the plaintiff's appeal, and ordered the payment of the remainder of the plaintiff's damages to the defendant, and it is dismissed as it is without merit.

Judges Yyeong-Jungngng (Presiding Judge)