Whether the attachment and assignment order of claims is valid in the distribution procedure;

In case where the original of the decision on provisional seizure of claims has been served on the garnishee and the decision on provisional seizure of claims has been executed, it is reasonable to view that the execution of provisional seizure will be extinguished only when the notice of withdrawal has been served on the garnishee.

Article 42 of the National Tax Collection Act: Effect of attachment of claims

[Supplementary District Court 2006Na19792]

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. With respect to the dividend procedure case ○○○○○○ Court 2005Ma374, the dividend amount of KRW 7,259,638 against the Defendant’s Republic of Korea shall be KRW 0,00,00,00,000,000 for the dividend amount of KRW 12,152,752 against the Defendant (appointed parties; hereinafter “Defendant”) and KRW 1,450,370, the dividend amount of KRW 8,194,334,353, and the dividend amount of KRW 8,536,64,00 for the selected person’s ○○○, who was distributed the dividend amount of KRW 1,018,80,08, KRW 1,90,866, KRW 230,60 for the selected person’s ○○○, who was distributed to KRW 1,45,781,741,57,7814,7,27,7481,5 of the selected person.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by the whole purport of the pleadings in the descriptions of evidence Nos. 1, 2, 4-1, 5-1, 5-1, 16-3, 6, 13, 15, 1, 1, 2 and 3.

A. The Plaintiff filed an attachment and assignment order (hereinafter referred to as the “instant attachment and assignment order”) with respect to the claim for the payment of automobile parts against ○○○○ Co., Ltd. (hereinafter referred to as the “instant claim attachment and assignment order”) with respect to the obligee, obligor, obligor, third obligor ○○○, claim amount of KRW 38,854,378 based on the executory exemplification of notarial deed No. 1746, 2003 prepared by us in this Court as 2004TTT80, and issued an attachment and assignment order (hereinafter referred to as “instant claim attachment and assignment order”) with respect to the instant claim for the payment of automobile parts against ○○○ Co., Ltd. on the basis of the executory exemplification of notarial deed No. 1746, 2003. The original of the decision was served

B. On the other hand, ○○○○○ Co., Ltd. (hereinafter “○○○○”) filed an application for provisional seizure against the claim on the part payment claim of this case with KRW 28,969,99 with respect to the creditor Co., Ltd., ○○○○○○, the debtor’s former ○○○, the third debtor ○○○○ Co., Ltd., and KRW 28,969,99, in order to preserve the claim on the goods payment claim against the former ○○○, a court 2004Kadan28460, and received a provisional seizure order on the part payment claim of this case. The original copy of

C. On 2004,7,15, 2004, 2004, 7,15, ○○○○○ Co., Ltd. withdrawn part of the above claim provisional seizure application, and following this withdrawal, this court’s notice of withdrawal of the claim provisional seizure application was served on ○○ Co., Ltd.

D. In order to preserve the claim for wages and retirement allowances against the former ○○○○ and the designated parties’ former ○○○○○ by this court, Defendant Jeong Jong-○ filed an application for provisional seizure against the claim amounting to KRW 106,808,129 with respect to the claim for the payment of the parts of this case with respect to the claim for provisional seizure against the claim amounting to KRW 106,808,129, and the provisional seizure against the claim was rendered on 2004,9,30. The original copy of the decision was served to ○○○○, Inc. on 10,5.5. The Defendant Republic of Korea (competent: ○○ Tax Office) seized the claim for the payment of the parts of this case on the grounds of the delinquency of national taxes of the former ○○○○○○, and on 204,8,13.

E. The ○○○ Co., Ltd. deposited KRW 43,162,685 of the claim amount of the parts of this case, while the seizure was conducted in accordance with Article 248(1) of the Civil Execution Act as a gold No. 785 of this Court in 2005, 2005.

F. Accordingly, this Court 2005Ma374 established the distribution procedure for the above enforcement deposit, and Defendant 1 ○○ and the designated parties claimed distribution based on the total amount of KRW 35,876,407 of the wage and retirement allowance claims with the highest priority repayment right, and Defendant Republic of Korea claimed delivery of national tax claims amounting to KRW 39,956,050.

G. After that, the court of execution shall distribute the amount of KRW 43,136,045, which remains after deducting KRW 26,640,00 from the deposit money of KRW 2005,11,28,162,685, the execution court shall actually distribute the amount of KRW 43,136,045, which is the remainder after deducting KRW 26,640,000 for enforcement expenses. The court of execution prepared a distribution schedule to distribute the amount of KRW 35,876,40 to the defendant Jung-○ and the designated parties, who are the wage creditors of the first priority right, and to distribute the amount of KRW 7,259,638 in the second priority. The plaintiff raised an objection against the distribution amount of KRW 2,97,971 out of the amount of dividends to the defendant Jong○ and the designated parties on the

2. The plaintiff's assertion and judgment

A. The plaintiff's act of withdrawal of provisional seizure is effective immediately upon receipt of a written withdrawal order to the court of ○○○○○○○○○○○○○○○○, which is a sole act of provisional seizure, and it is merely an act of notifying the garnishee of the withdrawal of the provisional seizure application. Thus, ○○○○○○ received the written withdrawal order to this court on July 15, 200, and the plaintiff's delivery of the original copy of the decision of provisional seizure and assignment order to ○○○○○○○○, which is a garnishee, to the same time as the above withdrawal order to 3rd○○○○○○○○○, which is a separate debtor, after the above withdrawal order was received. Thus, it is difficult to view that the original copy of the decision of provisional seizure and assignment order of this case was served to ○○○○○○○○○○, which is a separate one of the parties to the provisional seizure, and thus, it cannot be seen that the above order of provisional seizure and assignment order of this case becomes effective upon delivery of the above provisional seizure order to 20○○○.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[Supreme Court Decision 2007Da73826, Oct. 17, 2008]

1. All appeals are dismissed.

2. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

If a creditor withdraws an application for provisional seizure against a claim, the decision of provisional seizure against a claim shall become effective. However, if the original copy of the decision of provisional seizure against a claim has already been served on a third debtor and the decision of provisional seizure has been executed, the execution against the third debtor shall become invalid in the future (see Supreme Court Decision 2000Da19373, Oct. 12, 2001). This legal principle applies to the case where the third debtor becomes aware of the withdrawal of the application for provisional seizure before the withdrawal notice is served on the third debtor by other means than the notification by the court of execution officer, etc. The provisional seizure against a claim shall become effective only when the third debtor is served on the third debtor (see Articles 291 and 227(3) of the Civil Execution Act). If an application for provisional seizure order is withdrawn, the court of Grade IV, etc. shall notify the third debtor of such fact (see Articles 213(2) and 160(1) of the Rules on Provisional Seizure, and shall not protect the subjective interests of the third party.

In this regard, the court below is just in holding that the assignment order of this case by the plaintiff was invalid because the notice of withdrawal of the application for provisional seizure was served on the garnishee and was issued under the concurrent situation before the effect of execution of provisional seizure was extinguished, and that the assignment order which was invalidated once was exempted from the concurrent state of seizure due to the cancellation of execution of provisional seizure of claim thereafter, and there is no error in the misapprehension of legal principles as to the validity of execution of provisional seizure, as alleged in the ground of appeal No. 1.

In addition, even if the reasoning of the judgment of the court below is examined in detail in light of the records, it is not erroneous in the omission of the judgment on the dividend amount of the Defendants, or in the failure to exhaust all necessary deliberations due to the non-exercise of the right to explanation, as alleged in the

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.