[1] The meaning of the possession of the execution officer in the seizure of corporeal movables

[2] In a case where Eul corporation, a creditor, entrusted the execution officer with the authority to deliver corporeal movables at will in accordance with a seizure order and a collection order against the right to claim the delivery of corporeal movables, and other creditors Byung corporation, a creditor, applied for compulsory execution of corporeal movables to the execution officer. The execution officer arbitrarily delivers corporeal movables, and at the same time executes the seizure of corporeal movables upon the request for compulsory execution of corporeal movables, after treating corporeal movables from the third debtor corporation, as being taken over corporeal movables from the third debtor corporation, and had the company keep corporeal movables by obtaining permission, the case holding that the court below erred by misapprehending legal principles or failing to establish a seizure against corporeal movables from the beginning, on the ground that the execution officer did not clearly specify who directly possessed corporeal movables at the time of seizure of corporeal movables, etc., and did not conclude that the enforcement officer directly occupied corporeal movables and commenced possession of corporeal movables by completely removing them from the possession of the possessor at the time of seizure of corporeal movables, but did not directly commence possession at the time of seizure of corporeal movables.

[1] Articles 189(1) and 191 of the Civil Execution Act / [2] Articles 189(1), 191, and 243 of the Civil Execution Act

Plaintiff (Attorney Ho-sung et al., Counsel for the plaintiff-appellant)

Nasan Container Terminal Co., Ltd. (Law Firm Samyang, Attorneys Choi Ho-bi et al., Counsel for the defendant-appellant)

Busan District Court Decision 2018Na63204 Decided August 23, 2019

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. Notwithstanding the following facts, the lower court determined that the instant corporeal movables acquired the ownership of the instant corporeal movables, on the basis of the facts as stated in paragraphs (2) through (5) and (3), and that the Plaintiff purchased the instant corporeal movables in the auction procedure on December 22, 2015, at KRW 38250,000.

1) On September 23, 2015, at the time of executing the seizure of the instant corporeal movables, an execution officer entrusted by the Youngdo Industry Co., Ltd. (hereinafter “Yado Industry”), the creditor, with the seizure and execution of the right to request the delivery of corporeal movables, notified the Nonparty of the third debtor, the Defendant, at the execution place, at his/her discretion, at the time of the execution of the seizure of the instant corporeal movables. However, the Nonparty refused to comply therewith.

2) On September 23, 2015, an execution officer participated in the Nonparty and seized the instant corporeal movables in order to cover the claim amount under the seizure order and collection order against the instant corporeal movables claim and the execution cost.

3) At the time of the execution of the above seizure, the employees of the Masan Shipping Aviation, the garnishee at the time of the execution of the seizure, did not refuse to deliver the corporeal movables, such as confirming the location of the container to the execution officer, and the execution officer did not prepare a protocol not to deliver

4) After clarifying that the seized object is a seized object under the possession of the enforcement officer and obtaining the consent of the Youngdo industry which is the creditor, the seized object has been kept to the Gasan Shipping.

5) Inasmuch as the possession of the seized object has been transferred to the enforcement officer, the enforcement officer notified that no person may dispose of it, and would be punished in the event of disposal or concealment or damage the seizure indication.

B. However, we cannot accept the above determination by the court below for the following reasons.

1) In case where there is a seizure order against the claim for the delivery of corporeal movables, the execution officer entrusted by the creditor may seek the delivery of corporeal movables against the garnishee. When the garnishee has arbitrarily delivered them to the execution officer pursuant thereto, the execution officer shall make the said corporeal movables commercialized pursuant to the provisions on the simplification of corporeal movables (Articles 199 through 214 of the Civil Execution Act) (Article 243(3) of the Civil Execution Act). Meanwhile, where the third debtor does not deliver the objects at will despite the issuance of the delivery order, the creditor may request the execution officer to issue a collection order (Article 243(2) of the Civil Execution Act), and where the third debtor does not deliver the objects at will, the execution officer entrusted by the creditor based on the original copy of the above collection order may demand the third debtor to deliver the objects, and where the third debtor voluntarily delivers them, it may be possible to receive them, but if he refuses to perform it, it shall be impossible to execute execution.

2) A seizure of corporeal movables is conducted by an execution officer in possession of the things in possession of the debtor or those possessed by a third party who does not refuse to submit such things (Article 189(1) main text and Article 191 of the Civil Execution Act). Here, the possession of an execution officer refers to the possession directly by the debtor against such things or those other than the debtor and directly by the execution officer. It is not a valid seizure to make a seizure declaration merely without a direct possession of the objects. In addition, in a case where the creditor consents or it is difficult for the execution officer to carry them, the seizure may not be deemed a valid seizure. Furthermore, even in such a case, the execution officer may have the debtor or those other than the debtor keep the objects without a direct custody (Article 189(1) proviso and Article 191 of the Civil Execution Act), but even before the custody, it does not change that the execution officer should have a direct control over the objects prior to the custody, and the execution officer can keep the seized objects only after acquiring a direct control over them, and after clearly indicating it by sealing or by other means.

3) The record reveals the following circumstances.

A) The instant corporeal movables have been installed in the “Seoman International Co., Ltd.’s New Port Modernization” after having arrived at the Busan Port on November 14, 2014. On December 29, 2014, the said corporeal movables were stored in the Defendant’s New Port Modernization, and thereafter are in the same place thereafter.

B) On September 15, 2015, the Youngdo industry delegated an execution officer with the authority to deliver the instant corporeal movables at will according to a seizure order and a collection order incidental to the seizure order against the claim for the delivery of the instant corporeal movables.

C) Meanwhile, on September 16, 2015, an execution officer filed an application for compulsory execution of corporeal movables with the execution officer on the ground that the seizure of the right to request the delivery of corporeal movables in the instant case is a debtor of the Daeh S and another creditor company (hereinafter “A house”).

D) On September 23, 2015, the enforcement officer decided to deliver the instant corporeal movables at will and simultaneously seize the instant corporeal movables upon an application for compulsory execution of the said corporeal movables at Agsium. On the premise that the person directly occupying the instant corporeal movables directly occupies the instant corporeal movables without clarifying who is either the Masan Shipping and the Defendant, and that the submission of the instant corporeal movables was not refused, the enforcement officer, under the premise that the Masan Shipping directly occupies the instant corporeal movables from the Masan Shipping and the submission of the instant corporeal movables was not denied, had the Masan Shipping keep the instant corporeal movables by the Masan Shipping with the consent of the Youngdo industry, the creditor, upon the consent of the Youngdo industry. On the other hand, the enforcement officer notified the Masan Shipping that the possession of the instant corporeal movables, which is the seized objects, was transferred to the enforcement officer, and thus, any person was not disposed of, or subject to punishment for disposal or concealment or damage the seizure indication.

E) However, no circumstance is found to deem that the Defendant was in excess of the direct possession of the instant corporeal movables in the process of delivering the instant corporeal movables at will by an execution officer on September 23, 2015 and simultaneously conducting the seizure of corporeal movables upon an application for compulsory execution of a house’s corporeal movables.

4) Furthermore, insofar as a person who directly occupies the instant corporeal movables at the time of executing the seizure, etc. of corporeal movables on September 23, 2015 did not clarify who was between the Gasan Shipping and the Defendant, it cannot be readily concluded that the execution officer commenced the direct possession of the instant corporeal movables by removing the direct occupant from the total possession. If the execution officer did not directly possess the instant corporeal movables at the time of seizure, the execution officer cannot be deemed to have occupied the instant corporeal movables as the requisite for the establishment of seizure. Therefore, the seizure of the instant corporeal movables was not established from the beginning or null, and thus, the auction procedure conducted on the basis thereof becomes null and void, and the Plaintiff cannot acquire any right to the instant corporeal movables through the auction procedure (see Supreme Court Decision 2013Da112, Apr. 11, 2013).

5) Nevertheless, the lower court determined that the Plaintiff acquired the ownership of the instant corporeal movables through the auction procedure by deeming that the seizure of the instant corporeal movables was valid, without examining and determining whether a person who directly occupies the instant corporeal movables at the time the seizure, etc. was conducted. In so doing, the lower court erred by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the possession of enforcement officers in the seizure of corporeal movables, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Jae-hyung (Presiding Justice)