2015Da68911 Collection Money

A

B

Suwon District Court Decision 2014Na36822 Decided October 15, 2015

March 24, 2016

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. As to the grounds of appeal as to the non-existence of enforcement claim, the absence or extinction of enforcement claim is the reason for the obligor to assert in the lawsuit of objection, and the Defendant, the garnishee, in the lawsuit of impeachment, cannot refuse the performance of obligation by asserting it as a defense (see Supreme Court Decision 96Da13781, Sept. 24, 196).

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misunderstanding the legal principles as to the act of anti-social order, which affected the conclusion of the judgment. In addition, the ground of appeal that the claim in this case constitutes unjust enrichment to the plaintiff is based on the absence

2. As to the ground of appeal on the repayment to quasi-Possessor of the claim

A. The effect of the attachment and collection order shall arise immediately when the original copy of the attachment and collection order has been served on the garnishee. In other words, when it is deemed that the garnishee had been in an objective condition capable of becoming aware of the content thereof. However, even in cases where the attachment and collection order were lawfully served on the garnishee, in special circumstances, if the garnishee did not know of the fact of the attachment and collection order and paid the seized claim to the debtor without negligence, and if the garnishee did not pay it to the debtor without negligence, it may be acknowledged the discharge of the garnishee by analogy pursuant to Article 470 of the Civil Act concerning the performance against the quasi-Possessor (see Supreme Court Decision 2002Da31858, Aug. 27, 2002

B. According to the reasoning of the judgment below, in the Seoul Central District Court case No. 201th 52101 against C, the above court ordered payment on June 30, 201. The above order for payment became final and conclusive on September 7, 2011. 2) The plaintiff, on March 20, 2013, issued the above order for payment against C, 201. 36,576,438 won among the claims to be paid by C (hereinafter referred to as the "the claims of this case"), on the ground that C was not aware of its delivery and collection order of 10,00,000 won among the claims of this case, and the remaining claims were not served by the Seoul Central District Court No. 2013Ma7231, and the Seoul Central District Court No. 2010, Mar. 13, 2013.

D. However, according to the records, the Defendant asserted in the court below that the Plaintiff was not liable for additional payment to the Plaintiff since the Defendant repaid the entire claim of this case to quasi-Possessor, who is a quasi-Possessor of the claim. According to the legal principles as seen earlier, if the Defendant was unable to directly deliver the seizure and collection order of this case, and the Defendant did not know it, as alleged by the Defendant, repaid the claim of this case to C, and did not have any negligence, the Defendant may be exempted from liability by analogy applying Article 470 of the Civil Act

Therefore, the lower court rejected the Defendant’s assertion solely on the ground that the instant claim was served effectively prior to the repayment of the Defendant’s assertion against C, and determined the Defendant’s exemption from liability by examining the facts and specific circumstances as to the repayment of the Defendant’s claim against C, and examining whether the Defendant was unaware of the existence and delivery of the instant claim and the collection order, and by making the determination as to whether there was no negligence.

E. Nevertheless, the lower court determined otherwise. In so doing, the lower court erred by misapprehending the legal doctrine on repayment to quasi-Possessors of claims and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Gin-young