(영문) 대구지방법원 2008.8.26.선고 2008나953 판결

1. The part against the defendant in the judgment of the first instance shall be revoked and the plaintiff's claim corresponding to that part shall be dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 4,589,400 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Basic facts

The following facts may be acknowledged as either in dispute between the parties or in the entries in Gap evidence 1, 2, 3, and 10, by integrating the whole purport of the pleadings:

On May 27, 2004, the Plaintiff received a seizure and collection order (Tgu District Court 2004TB 4472, hereinafter referred to as "the seizure order of this case") against B, ordering B to seize and collect the amount equivalent to the above claim amount (hereinafter referred to as "the above wage of this case") out of the wage claim that B holds against the Defendant who is a third debtor, based on the original copy of the executory decision of performance recommendation for loans claim No. 2003Gapo53086, which became final and conclusive against B, and the above seizure and collection order was served on the Defendant on May 27, 2004.

A. According to the above facts of recognition, the defendant is obligated to pay the salary of this case to the plaintiff, except in extenuating circumstances.

B. Judgment on the defendant's defense

The defendant set up that the defendant's obligation to pay the salary of this case to the plaintiff was extinguished, since the defendant deposited the other creditors' seizure of the claim of this case as the ground for deposit that the other creditors' seizure was concurrent.

According to the evidence Nos. 1 through 3 of Eul evidence Nos. 1-3, as to the wage claim against the defendant of the defendant of the Daegu District Court on March 16, 2005, the claim seizure and collection order (the claim amount of creditor C organization 7,187,763 won) were delivered on July 6, 2005, each of the above support 2005TT364 and the collection order (the claim amount of creditor D Co., Ltd. 2,803,723 won) was delivered to the defendant, and the defendant retired on June 29, 2005, on July 29, 2005, the defendant applied Article 248 (1) of the Civil Execution Act to the above support on July 29, 2005 as the claim No. 248 of the Civil Execution Act, and the remainder of the claim No. 380 of the deposited money of the case was not entered as the execution bond of the case No. 384 of the above.

According to Article 235(1) of the Civil Execution Act, when a new seizure order is issued in excess of the remainder after a part of a claim has been seized, the effect of each seizure shall be below the whole claim. Thus, in cases where multiple recommendations have been issued for seizure as to claims continuously accrued as above, and where the seizure light is made as a result of several different seizure periods, the effect of each seizure shall be limited to all the claims accrued after the seizure, unless it is expressly stated by limiting the time of occurrence of claims that affect the effect of the seizure from each seizure. Even if other seizures have been issued after the seizures are excluded from the effect of seizure due to other reasons, in principle, the effect of each seizure shall be limited to all the claims accrued before the seizures. On the other hand, Article 248(1) of the Civil Execution Act provides that "a third party obligor may deposit all the claims related to the seizures in full with the obligee's deposit request, collection request, concurrentness, etc., and therefore, in cases where a seizure agreement is reached, the effect of collection shall be limited to 300 creditors who participate in the seizure or 130.

In the case of this case, the plaintiff, C organizations and D companies received the attachment and collection order of the claim against the defendant in sequence, and the total amount of the claims seized by the above three parties exceeded the whole amount of the claim for the payment claim of B. The defendant accepted the attachment and collection order of C organizations and D companies, stating only the fact of the attachment and collection order of C and D companies in the reason of the deposit while executing the whole payment claim of B for the execution creditor pursuant to Article 248(1) of the Civil Execution Act. However, even if the defendant accepted the fact of the attachment and collection order of this case, since the defendant extinguished the claim for the payment claim of B by depositing the execution for C organizations and D companies, which are legitimate collection right holders, the effect of its extinction extends to the plaintiff in relation to the attachment. Thus, the defendant's defense has merit, and the plaintiff's claim for the collection amount is not justified.

3. Determination on the claim for damages

A. The plaintiff's assertion

The Plaintiff asserted that the Defendant was liable to compensate the Plaintiff for the damages, on the ground that the Plaintiff did not state the Plaintiff as the principal deposit while making the instant deposit with the knowledge that the Plaintiff had seized the instant claim, and the Plaintiff did not receive dividends equivalent to KRW 4,589,400 out of the amount of the Plaintiff’s claim against B in the distribution procedure of the instant deposit money.

B. Determination

On the other hand, the defendant did not enter the seizure and collection order of this case in the cause of deposit while depositing B's salary, and the fact that only C organizations and D Co., Ltd except the plaintiff were paid out of the remaining seizure and collection creditors in the distribution procedure of Young-gu District Court Young-Support E for the Deposit, and there is no dispute between the parties, and according to the evidence No. 5, the debtor was declared bankrupt on June 27, 2007 ( Daegu District Court 2006Hadan10450), and the debtor was granted immunity decision on October 12, 207 (Seoul District Court 2006 Daegu District Court 20932) is recognized.

(1) However, Article 248 (1) of the Civil Execution Act provides that "the garnishee may deposit the total amount of monetary claims related to the seizure" (Article 248 (1) of the former Civil Procedure Act). If the garnishee does not overlap with the seizure but has the right to deposit all of the monetary claims related to the seizure, and it does not necessarily arise because there exists the seizure, and Article 248 (2) of the Civil Execution Act provides that "the garnishee served with a written demand for distribution shall deposit the amount equivalent to the seized portion at the request of the creditor participating in the distribution". Article 248 (3) of the same Act provides that "if a seizure order or seizure order has been issued again exceeding the unclaimed portions among the monetary claims, the garnishee is not entitled to deposit the total amount of such monetary claims if the defendant has failed to report the distribution to the court prior to the seizure or provisional seizure order, and therefore, the garnishee is not entitled to deposit the amount equivalent to the deposit within the reasonable period if the garnishee does not have the right to request the distribution, and the garnishee does not have the obligation to deposit the same within the period.

Since there is no substantial causal relationship, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since part of the judgment of the court of first instance against the defendant which has partially different conclusions is unfair, it is revoked and the plaintiff's claim corresponding to that part is dismissed. It is so decided as per Disposition.