In the event that a claim against a third party debtor is seized due to a disposition on default under the National Tax Collection Act and the seizure is cancelled, whether the collection authority and the litigation performance right for the seized claim return to the debtor (affirmative)

If there exists a seizure and collection order against a garnishee, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor shall lose the standing to file a lawsuit for performance against the claims subject to seizure. However, the creditor may withdraw the application for seizure before the period of compatibility expires. In such cases, the creditor may also extinguish the creditor's right of collection as a matter of course, even in cases where the creditor has received a final and conclusive judgment by filing a lawsuit for collection claim, and when the right of collection expires by withdrawing the application for seizure before the repayment is made pursuant to the execution, both the right of collection and the right to perform a lawsuit shall be returned to the debtor. The same applies to cases where the State has seized the debtor'

Article 51 of the Civil Procedure Act, Articles 229(2) and 240(1) of the Civil Execution Act, Article 160(1) of the Civil Execution Rule, Articles 41 and 53(1) of the National Tax Collection Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff (Law Firm UBS et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Same, Attorneys Lee Hy-le et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na39979 decided May 14, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. If there exists a seizure and collection order, only the collection obligee may file a lawsuit for performance against the garnishee, and the obligor loses the standing to file a lawsuit for performance against the claims subject to seizure (see, e.g., Supreme Court Decision 9Da23888, Apr. 11, 2000). However, the obligee may withdraw the application for a seizure order before the period of compatibility expires. In this case, the obligee’s right to collect the claims is naturally extinguished, even if the obligee has received a final and conclusive judgment by filing a lawsuit for a collection claim, and the right to collect the claims is entirely returned to the obligor when the collection right is extinguished by the withdrawal of the application for the seizure order before the repayment is made pursuant to the National Tax Collection Act. The same applies to the case where the State has seized the claims against the garnishee against the third obligor due to a disposition

B. Based on the evidence adopted, the lower court: (a) held an office site and the claim for the transfer of a building site of KRW 3.7 billion against the Defendant; (b) obtained a claim amounting to KRW 866,586,814 as to the instant claim; and (c) served the original copy of the order to the Defendant on October 25, 2002; (d) seized KRW 2,356,742,120 among the instant claim on November 11, 202 upon the default of national taxes; and (e) obtained the notice of attachment on November 12, 2002 from Nonparty 1 to the Defendant; and (e) notified Nonparty 2 of the attachment order to the Defendant on November 14, 2002; and (e) notified Nonparty 2 of the attachment order to the Defendant on November 14, 2002; and (e) obtained the attachment order from Nonparty 1 to the Defendant on June 16, 2002; and (e) obtained the attachment order from Nonparty 216.

The court below rejected the plaintiff's claim for the transfer amount of this case on the ground that the plaintiff acquired the claim of this case in which the rights are restricted by the above seizure of the non-party 2 corporation and the Republic of Korea, and 866,586,814 out of the claim of this case was entirely transferred to the non-party 2 corporation, and that the sum exceeds KRW 1,971,252,480, the Republic of Korea has the right to collect, and that the sum exceeds KRW 2,256,062,876, the plaintiff cannot claim the payment of the claim of this case against the defendant, and that the plaintiff's right to perform the lawsuit of this case is not recovered because the non-party 2 corporation received the full payment or the Republic of Korea had already

C. In a case where an assignment order becomes final and conclusive, when the assignment order was served on the garnishee, the claim seized is transferred to the execution creditor instead of the payment (Article 229(3) of the Civil Execution Act). Therefore, with respect to KRW 866,596,814, all of the instant claims to Nonparty 2 Co., Ltd., the Plaintiff cannot claim payment against the Defendant on the ground that the acquisition of the claim was effective and thus, the lower court’s judgment on this part is justifiable

D. However, the lower court’s determination on the remainder after deducting the total amount from the purchase price of this case is not acceptable in light of the legal doctrine as seen earlier.

According to the facts acknowledged by the court below, since the Republic of Korea has released the seizure of part of the claim of this case before the execution procedure under the disposition on default was completed, the Republic of Korea's right to collect the claim of this case was extinguished, and accordingly the collection power and litigation performance right belongs to the plaintiff, the junior creditor. Although the Republic of Korea has received a final and conclusive judgment in favor of some of the defendant by exercising the collection right based on the seizure of the claim of this case, the collection procedure is not different, unless the defendant has received payment by completing the collection procedure.

Therefore, the lower court should have determined the propriety of the Plaintiff’s claim as to the remaining portion of the claim of this case, excluding the remaining portion of the claim that the Plaintiff deducted from the amount of the Plaintiff’s receipt of reimbursement and the entire portion of the claim to Nonparty 2. Nevertheless, the lower court rejected the Plaintiff’s claim of this case solely on the grounds as seen earlier, without reaching such determination. In so doing, the lower court erred by misapprehending the legal doctrine on seizure and cancellation under the National Tax Collection Act and by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

2. Regarding ground of appeal No. 2

As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the expression of intent as stated in the disposal document, unless there is any clear and acceptable counter-proof that the content of the statement is denied (see, e.g., Supreme Court Decisions 2002Da23482, Jun. 28, 2002; 2004Da67264, 67271, May 13, 2005).

On November 20, 2002, after the assignment of claims of this case and its notification, the court below acknowledged that the defendant agreed to pay 300 million won to the plaintiff additionally within one month from the date of the designation of occupancy of the officetel of this case, and that when the payment of the above amount arises from other creditors of the non-party 1 corporation due to legal measures such as seizure, provisional seizure, etc., the plaintiff entered into a special agreement with the non-party 1 corporation first after consultation with the non-party 1 corporation. The court below determined that the plaintiff did not have any liability to pay the above 300 million won since there is no evidence to prove that the plaintiff would have resolved the legal problems such as the seizure of

However, in light of the aforementioned legal principles and records, the above judgment of the court below cannot be accepted for the following reasons.

Even according to the facts acknowledged by the court below, the plaintiff cannot be deemed as a condition of suspension as to the defendant's occurrence of the obligation to pay KRW 300 million in consultation with the non-party 1 corporation, and it is reasonable to view it as a mere agreement on the fulfillment of the obligation to pay KRW 300 million. Since the legal issues arising from the seizure of the non-party 2 corporation and the Republic of Korea prior to the date of the closing of argument in the court below are resolved in accordance with the above legal principles, it shall be deemed that the fulfillment

Nevertheless, the court below erred by misapprehending the legal principles on the interpretation of the disposal document, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)