[1] Whether the litigation costs associated with the cancellation of provisional seizure include the scope of damages secured by the deposit provided due to provisional seizure (affirmative)

[2] In case where there exists a seizure and collection order against a monetary claim, whether an execution creditor may seize the execution creditor's collection right against a third party debtor (negative), and the validity of an order of seizure (negative)

[3] The case holding that in case where Gap corporation was subject to the provisional seizure order against Eul and was subject to the provisional seizure order against Eul again, and the local government Byung seized Eul's deposit claims for recovery and payment of Eul's deposit in order to collect delinquent amount, including Eul's property tax, etc., Eul filed an objection against the provisional seizure order, and the amount of litigation costs became final and conclusive upon Gap's objection to the provisional seizure order, Eul filed an objection against each of the above provisional seizure order, and filed a claim for recovery of Gap's deposit claims on behalf of Eul company after Gap received the provisional seizure and collection order, and the tax office attached Eul's claim for withdrawal of deposit in order to collect Eul's national tax in arrears, and the deposit officer filed a report on the grounds of competition with Eul, and the distribution procedure commenced following the provisional seizure order against Byung, the provisional seizure order against Byung and the local government Byung's tax office's claim for withdrawal or collection of deposit can not be acknowledged as valid, but the provisional seizure order's cancellation order can not be acknowledged as invalid or finalized.

[1] The deposit money provided by the court's order for provisional seizure guarantees the obligor's damages caused by unfair provisional seizure. The costs of the revocation of provisional seizure are included in the scope of damages secured by the deposit of the provisional seizure. In addition, even in cases where the secured obligee claims the recovery of the deposit after the seizure of the right to claim the recovery of deposit money and the issuance of the order to collect the deposit after the order to collect it was issued and the decision to revoke the deposit was issued, insofar as the secured claim is the execution claim, the secured right holder's above application for the revocation of security is not a waiver of the security right and a compulsory execution as a general creditor, but a method to exercise the right to claim the recovery of deposit by the active exercise of the security

[2] Even if there was a seizure and collection order against a monetary claim, it is merely a real act of realization of a realization disposition in the compulsory execution procedure, because it merely gives the execution creditor the right to collect the creditor's claim against the third debtor in the compulsory execution procedure. Accordingly, the claim against the third debtor is not transferred or reverted to the execution creditor. Therefore, such collection right is of the nature that it cannot be seized because it is not possible to independently dispose of it and realize it, and the seizure order should be deemed null and void.

[3] Where Company A received the provisional seizure order against Company B, and thereafter received the provisional seizure order against Company B, and thereafter deposited the security in accordance with the court order, and the local government Byung seized Party B’s right to claim reimbursement and payment in order to collect delinquent amount, including the property tax of Company B, and Party B received an objection against the provisional seizure order and determined the costs of lawsuit as the title of execution, with Company B’s right to claim reimbursement of deposited money as the title of execution, and Company B’s right to claim reimbursement of deposited money was revoked on behalf of Company B to collect the amount of national tax in arrears, and Party B’s right to claim reimbursement of deposited money was seized to the tax office upon notification of the grounds for the competition of Company B’s right to claim collection of deposited money, the case holding that Party B’s right to claim collection of deposited money and its right to claim restitution cannot be acknowledged as having the effect of the provisional seizure order as the right to claim restitution of deposited money and its right to claim restitution of deposited money cannot be acknowledged as having no effect as the right to claim collection of deposited money as the right to claim.

[1] Articles 19(3) and 280 of the Civil Execution Act, Articles 122 and 123 of the Civil Procedure Act / [2] Articles 227 and 229 of the Civil Execution Act / [3] Articles 19(3), 227, 229, and 280 of the Civil Execution Act, Articles 122 and 123 of the Civil Procedure Act

[1] Supreme Court Decision 2003Da19183 Decided November 26, 2004 (Gong2005Sang, 24), Supreme Court Decision 2012Ma2061 Decided February 7, 2013 / [2] Supreme Court Decision 96Da54300 Decided March 14, 1997 (Gong197Sang, 1098), Supreme Court Decision 2015Da26009 Decided January 31, 2019 (Gong2019Sang, 582)

Plaintiff (Attorney Seo-sik, Counsel for the plaintiff-appellant)

Songpa-gu Seoul Metropolitan Government and one other (Attorney Lee Chang-chul, Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2018Na29537 decided July 5, 2019

The judgment below is reversed, and the case is remanded to the Seoul Eastern District Court.

The grounds of appeal are examined.

1. As to the defendants' assertion that there is no taxation claim

According to the reasoning of the lower judgment, the lower court acknowledged, based on the evidence duly admitted by the Defendants, that the Plaintiff was in arrears equivalent to KRW 7,079,579 of local income tax with respect to Defendant Songpa-gu Seoul Metropolitan Government (hereinafter “Yong-gu”) and the total amount of KRW 1,768,536,670 of global income tax and capital gains tax in 2013 with respect to Defendant Republic of Korea (Yong-gu). In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the burden of proof, etc. of dividend claims

2. As to the assertion that the seizure of the Defendants is invalid

A. The deposit money provided by the court’s order for provisional seizure as security for the obligor’s damage caused by unfair provisional seizure is included in the scope of damage caused by provisional seizure (see Supreme Court Order 2012Ma2061, Feb. 7, 2013). In addition, in a case where the secured obligee claims the recovery of deposit money after seizure of the right to claim the recovery of deposit money and receiving an order for collection or a final and conclusive order, the secured obligee’s right to claim the recovery of deposit money is the secured claim of the secured claim, so long as the secured claim is the secured claim of the secured claim, the said application for the revocation of security by the secured obligee is not a compulsory execution but a method to exercise the right to claim the recovery of deposit by active exercise of the right to claim the deposit. Thus, it is reasonable to view that this is a method to exercise the security right (see Supreme Court Decision 2003Da19183, Nov. 26, 2004, etc.).

Meanwhile, even if there was a seizure and collection order against a monetary claim, it is merely an act of realizing the realization of a realization disposition in the compulsory execution procedure, because it merely gives the execution creditor the right to collect a claim against the third debtor to the execution creditor in the compulsory execution procedure. This does not necessarily mean that the claim against the third debtor against the execution creditor is transferred or reverted to the execution creditor. Therefore, such collection right is of the nature that it cannot be seized because it does not itself be realized by an independent disposal, and the seizure order against it shall be deemed null and void (see, e.g., Supreme Court Decisions 96Da54300, Mar. 14, 1997; 2015Da26009, Jan. 31, 2019).

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

1) On April 16, 2013, the Gold Co., Ltd., Ltd. (hereinafter “Sasan Co., Ltd.”) filed a provisional attachment order against the Plaintiff on the ground that the loan claim amounting to KRW 1 billion against the Plaintiff is a preserved right, and the Seoul Eastern District Court (Seoul East District Court 2013Kadan3457) applied for provisional attachment against the Plaintiff on May 1, 2013 (hereinafter “the provisional attachment order”).

In addition, on August 11, 2015, the non-party company filed an application for provisional seizure of another claim against the plaintiff as stipulated in 2015Kadan3379 at the same court on the ground that the claim for the refund of the lease deposit amounting to KRW 587,740,757, which is the balance among the above loans extended to the plaintiff against the plaintiff, was the preserved right. In accordance with the above court's order to provide security, the non-party company deposited the plaintiff as the deposited person on August 18, 2015 and deposited the amount of KRW 125 million at the above court as security (hereinafter "the provisional seizure order of this case"), and received the provisional seizure order on August 19, 2015 (hereinafter "the provisional seizure order of this case").

2) On August 24, 2016, in order to collect the Plaintiff’s amount in arrears, including the Plaintiff’s property tax, from KRW 7,079,570, the Songpa-gu seized “amount until the said amount in arrears, out of the Plaintiff’s right to claim for recovery and payment of the deposit money.” On August 30, 2015, Defendant Songpa-gu attached the deposit officer of the Seoul East District Court.

3) On the other hand, on March 15, 2016, the Plaintiff filed an objection with Seoul Eastern District Court 2016Kadan921 and 2016Kadan8888 regarding the preceding provisional attachment order and the provisional attachment order of this case. The above court accepted all the Plaintiff’s objection on October 5, 2016, and rendered a decision that “the provisional attachment order of the non-party company is revoked, the application for provisional attachment is dismissed, and the litigation costs are borne by the non-party company,” and in subparagraph 2016Kadan888, “the provisional attachment order of this case is revoked, the application for provisional attachment of the non-party company is dismissed, and the litigation costs are borne by the non-party company.” Each of the above decisions became final and conclusive on October 19, 2016 (hereinafter each “decision on the revocation of provisional attachment and the revocation of provisional attachment of this case”).

4) According to the Plaintiff’s petition for determination of the amount of litigation costs, the amount of litigation costs that the Nonparty Company is obligated to reimburse to the Plaintiff by the prior provisional attachment revocation decision was KRW 6,331,280 (Seoul East Eastern District Court 2016Kade497, hereinafter “Court costs of preliminary attachment”). The amount of litigation costs that the Nonparty Company is obligated to reimburse to the Plaintiff by the provisional attachment revocation decision of this case was determined as KRW 5,241,280 (the same court 2016Kade499, hereinafter “Court costs of provisional attachment”).

5) On February 14, 2018, the Plaintiff: (a) made a final decision on the amount of each of the above litigation costs as the enforcement title; (b) received the claim amounting to KRW 11,572,560 as to the non-party company’s right to claim the recovery of deposit money (hereinafter “instant claim seizure and collection order”); and (c) received the claim seizure and collection order as to the non-party company’s right to claim the recovery of deposit (hereinafter “non-party company’s claim seizure and collection order”); and (d) around that time, the said decision was served

6) On February 23, 2018, the Plaintiff filed an application for the revocation of collateral on behalf of Nonparty Company (Seoul Eastern District Court 2018 Chicago138) and received the revocation of collateral on February 27, 2018, regarding KRW 11,572,560 of the instant deposit.

7) On March 6, 2018, in order to collect the Plaintiff’s amount equivalent to KRW 1,768,536,670 of the Plaintiff’s amount of national taxes in arrears, the amount of the Plaintiff’s claim for payment of the deposit money was seized, and on March 9, 2018, the Seoul East District Court’s deposit officer notified of seizure.

8) On March 5, 2018, the Plaintiff filed a claim with the deposit officer of the Seoul Eastern District Court for recovery of KRW 11,572,560 out of the instant deposit. However, on March 12, 2018, the said deposit officer rejected repair on the grounds of concurrent seizure and filed a report on the grounds thereof on March 12, 2018, the said KRW 11,572,560 as well as interest KRW 11,59,416 as to KRW 11,59,416 as to KRW 11,59,416.

9) In the said distribution procedure, the executing court prepared a distribution schedule with the content that distributes KRW 7,079,570, out of KRW 11,586,200, which is the date of distribution, to the Defendant Songpa-gu, and the remaining KRW 4,506,630, which is to be distributed to the Defendant respectively to the Republic of Korea. On the said date of distribution, the Plaintiff stated an objection against the entire amount of distribution to the Defendants on the said date of distribution, and filed a lawsuit of demurrer against the distribution of this case.

C. Examining the above facts in light of the legal principles as seen earlier, the following conclusion can be derived.

1) Of the Plaintiff’s claim for the provisional seizure based on the collection order and the seizure of the instant claim, the part concerning the costs of the instant provisional seizure is the Plaintiff’s damage guaranteed by the instant deposit. In addition to the Plaintiff’s claim for the provisional seizure costs of this case, which are the secured claim of the instant deposit, as the secured right holder, instead of directly claiming the payment of the instant deposit, the Plaintiff’s claim for the recovery of the deposit is seized, and even if the Plaintiff, who is the secured right holder, received the collection order, and filed the claim for the recovery of the deposit along with the decision to revoke

Therefore, the seizure of the defendants' claims against the plaintiff's claim for delivery of the deposit money of this case as the seized claim can be recognized as valid as to the costs of the provisional seizure of this case.

2) However, among the Plaintiff’s above claim for recovery of deposit money, the part concerning the costs of the prior provisional seizure is not included in the Plaintiff’s damages secured by the deposit money. As to the costs of the prior provisional seizure which are not included in the secured claim of the deposit money, the Plaintiff cannot have a claim for payment of deposit money as the secured right holder, and the seizure and collection order of this case, which is the execution claim, and revocation of the security, is merely a compulsory execution against the Plaintiff’s claim for

Therefore, due to the seizure and collection order of the instant case, the Plaintiff only granted the right to collect the costs of the prior provisional seizure among the claims for the collection of the deposit money of the non-party company due to the seizure and collection order of the instant case, and the claim for recovery corresponding to that portion does not directly belong to the Plaintiff. Therefore, the seizure of the Defendants, which indicated the Plaintiff’s right to claim for withdrawal or collection of the deposit money of this case as the seized claim, is a seizure of the non-existent claims for the non-existent claims, and thus, cannot

D. Nevertheless, the lower court upheld the first instance judgment that recognized that the Defendants distributed the aforementioned dividends to the Defendants, on the premise that the Defendants’ attachment would affect the entire deposit claims for recovery based on the instant claim attachment and collection order. In so doing, the lower court erred by misapprehending the legal doctrine on the method and effect of the security right holder’s exercise of the security right and the effectiveness of seizure, etc., thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal on this part is with merit within the scope of the litigation cost of the prior provisional attachment

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.

Justices Park Sang-ok (Presiding Justice)