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The judgment below is reversed and the case is remanded to Seoul High Court.
Reasons
The defendant's grounds of appeal are examined.
1. If there exists a seizure and collection order against the claim, only the collection creditor may institute a lawsuit for performance against the garnishee, and the debtor shall lose the standing to institute a lawsuit for performance against the seized claim;
The above matters concerning the standing to be a party are related to the requirements of litigation, and the court shall investigate and determine them ex officio. Although the parties did not assert this by the time the arguments are concluded in the trial court
Even if a new argument can be asserted and proved by the court of final appeal.
(see, e.g., Supreme Court Decisions 2007Da60417, Sept. 25, 2008; 2018Da2220178, Jul. 20, 2018). Meanwhile, in cases where a third party obligor indicated as a seized claim the amount to be paid to the obligor according to the result of the judgment, the claim under the substantive law, which is the subject matter of the lawsuit, becomes a claim subject to seizure and collection order under the substantive law.
(2) On April 28, 201, the lower court: (a) concluded that the Plaintiff paid to the Defendant for the instant construction project, and agreed to pay and reimburse construction costs, other than construction costs, to the Plaintiff; and (b) the Plaintiff guaranteed the Defendant’s obligation to pay and pay the purchase price upon the Defendant’s request; (c) determined that the Defendant, the trustee guarantor, was liable to compensate the Plaintiff for the remainder of the purchase price; and (d) partly accepted the Plaintiff’s claim.
However, the record reveals that “the amount until the time of the claim, out of the monetary claims the plaintiff would have received from the defendant in the lawsuit of this case,” the following: ① the amount claimed on October 13, 2015; ② the amount claimed on October 13, 2015; ② the order of seizure and collection of KRW 117,780,821 as the amount claimed on October 13, 2015; ③ the order of seizure and collection of KRW 31,787,090 as the amount claimed on November 16, 2015; and ③ the order of seizure and collection of KRW 31,787,090 as the amount claimed on June 14, 2016 by AB.