[1] Where two or more claims attachment and assignment orders are simultaneously served on the garnishee with respect to the same claim, whether the pertinent assignment order is null and void as it was issued in competition with the claims seizure (affirmative), and whether the same applies to cases where the notice of assignment of claim with the fixed date is served simultaneously with the respective claims seizure and assignment order, and there is no heat between the assignee and the entire obligee (affirmative)

[2] Where two or more notices of assignment of claims with a fixed date and orders for seizure and assignment of claims are simultaneously served on the garnishee, whether the amount constituting the object of the assignment of claims shall be considered in determining whether the seizure of claims competes with the garnishee (negative)

[3] In a case where a lessee’s claim for the repayment of the lease deposit is entirely satisfied, whether the lessee’s possession of the leased object after the termination of the lease contract constitutes an illegal possession (negative with qualification)

[1] Where two or more claims attachment and assignment orders are issued for the same claim and simultaneously served on the garnishee at the same time, the issue of whether the pertinent assignment order is null and void shall be determined on the basis of whether the total sum of the amount of seizure of each such claim exceeds the amount of claims subject to seizure. Thus, where the former is in excess of the latter, the relevant assignment order shall be deemed null and void since all the claims are issued when the seizure of claims is concurrent, but unless otherwise, the relevant assignment order shall be deemed null and void since the seizure of claims is not concurrent. The same shall apply where the notice of assignment with a fixed date of claims assignment is simultaneously served on the garnishee along with the original copy of each claim attachment and assignment order, and thus no compromise exists between the assignee and all creditors.

[2] In a case where the original copy of the assignment notification with a fixed date and two or more assignment orders are simultaneously served on the same claim, the assignment of the claim is different from that of the seizure order against the claim, and in determining whether the assignment order is null and void because it differs in nature from that of the seizure order against the claim, it is not necessary to compare the amount of the seized claim with the amount of the seized claim, or to deduct the amount which becomes the object of the assignment of claim from the amount of the seized claim, and to compare only the remainder with the sum

[3] Even if a lessee’s claim for the repayment of the lease deposit is entirely satisfied, the identity of the claim is maintained, and the simultaneous performance relationship continues to exist as a matter of course. Thus, since the lease contract is terminated, it shall not be deemed an illegal possession since possession of the object of lease is based on the right of defense for simultaneous performance, unless the lessor asserts and proves that, after the lease contract is terminated, the lessor lost his/her right to defense of simultaneous performance due to reasons such as actual performance of the claim for the repayment of the remaining lease deposit to the person who received the claim for the repayment of the lease deposit, or because the lessee failed to specify the object despite the repayment of the obligation, and

[1] Articles 563, 564, and 568-2 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see Article 229 of the current Civil Execution Act), 564 (see Article 231 of the current Civil Execution Act), and 568-2 (see Article 235 of the current Civil Execution Act), Article 450 of the Civil Act / [2] Articles 563, 564 (see Article 231 of the current Civil Execution Act), and 568-2 (see Article 235 of the current Civil Execution Act), Article 450 of the Civil Act / [3] Articles 536, 618, and the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 200), Article 263 of the former Civil Procedure Act (see Article 266(3) of the current Civil Procedure Act)

[1] Supreme Court Decision 93Da24223 delivered on April 26, 1994 (Gong1994Sang, 1459) / [3] Supreme Court Decision 89Meu4298 delivered on October 27, 1989 (Gong1989, 1784)

Plaintiff (Attorney Han-won, Counsel for plaintiff-appellant)

Song-Hun (Attorney Kim Yong-il, Counsel for the defendant-appellant)

Gwangju High Court Decision 2001Na2043 delivered on September 14, 2001

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. As to the first proposal

Where two or more orders of seizure and assignment are issued for the same claim and simultaneously served on the garnishee, whether the relevant assignment order is null and void since it was issued at the same time when the seizure of the claim is concurrent, shall be determined on the basis of whether the total sum of the seizure amount of each order of seizure exceeds the amount of the claims subject to seizure. Thus, if the former is in excess of the latter one, the relevant assignment order is issued when the seizure of the claim is concurrently conducted, but if not, it shall be null and void as it does not coincide with the seizure of the claim, and it shall be deemed that all of the relevant assignment order is valid. The same shall apply where the notice of assignment with the fixed date of the same claim is simultaneously served on the garnishee along with the original copy of each order of seizure and assignment, and thus no compromise exists between the transferee and all creditors.

In light of his adopted evidence, the court below determined that the non-party company entered into a lease agreement between the defendant on July 6, 1995 with the term of June 30, 1999 with respect to the part of the building of this case with the lease deposit amounting to KRW 330 million and the lease deposit amounting to KRW 330 million,000,000,000,000,0000,000,000,0000,000,000,0000,000,0000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000.

However, the court below erred in holding that, based on its factual basis, if the originals of the notice of assignment of claims with the fixed date and the two orders of seizure and assignment as in this case were delivered to the third debtor simultaneously, and there is no heat among them, and the claim amount of the claims of the plaintiff and the non-party 1 as to the seizure and assignment order is equal to KRW 150 million each, while the claim amount of the claims of the plaintiff and the non-party 1 as to the above claim amount is smaller than the above claim amount as KRW 100 million, and the claim amount of the claims subject to the seizure and assignment order received by the plaintiff exceeds KRW 150 million, which is the seizure amount, there is no problem of the seizure and assignment

However, even based on the facts acknowledged by the court below, since it is apparent that the sum of the seizure and assignment order of the plaintiff and the non-party 1, who simultaneously served at the same time, is merely 300 million won and less than 330 million won against the defendant of the non-party company, which is the seized claim, the assignment order issued by the plaintiff cannot be deemed null and void since it was not issued under the competition of the seizure of the claim.

In addition, in cases where the original copy of the assignment notification with a fixed date and two or more assignment orders are served simultaneously with respect to the same claim, the assignment of the claim is different from that of the seizure order against the claim, and thus, in determining whether the assignment order is null and void as it is issued in competition with the seizure of the claim, the assignment order in question should not be compared with the amount of the seized claim by adding up the amount subject to the assignment order, or deducting the amount subject to the assignment of claim from the amount of the seized claim, and only the remaining portion

Therefore, the judgment of the court below that rejected the Defendant’s assertion that the assignment order was issued under the concurrent attachment of claims and that the assignment order was null and void is justified, but it is just in the conclusion of rejecting the Defendant’s argument. Therefore, the ground of appeal that the judgment below erred by misapprehending the legal principles as to the competition of seizure and the validity of an assignment order, or omitting the Defendant’s decision on the Defendant’

2. As to the second proposal

The court below rejected the defendant's assertion on the ground that the evidence submitted by the defendant alone is insufficient to recognize the defendant's assertion, and that there is no other evidence supporting it, since the defendant's claim for promissory note payment, which is the claim of the plaintiff's claim for the attachment and assignment order, was null and void because it was based on a false declaration of intention made in collusion between the plaintiff and the non-party 2, the representative director of the non-party company

Compared with the evidence in the record, the judgment of the court below is just, and there is no error in the misapprehension of the legal principles as to the wrongful admission of facts or the allocation of burden of proof in violation of the rules of evidence.

We cannot accept these arguments in the grounds of appeal.

3. As to the third proposal

A. As the lessee of the building of this case refuses to do so, the Defendant asserted that the lessee has to deduct the above amount from the lease deposit to be returned to the Plaintiff as part of the lease deposit, from October 18, 1998 to January 18, 1999, the Defendant paid the lessee a sum of KRW 68,000,000,000, which was the sum from around October 18, 1999. However, the court below rejected the Defendant’s assertion that the lessee did not return the above amount to the Plaintiff, upon considering his admitted evidence, even if the lessee did not order the building of this case, the Defendant paid the lessee a sum of KRW 55,00,000 and KRW 5,00,000 on November 3 of the same year, 199, the sum of KRW 68,000,000,000 to the non-party company’s directors or the non-party company’s consolation money.

Compared with the evidence in the record, the fact-finding by the court below is just and there is no error of law in finding facts against the rules of evidence.

The grounds of appeal cannot be accepted.

B. Even if a lessee’s claim for the repayment of the lease deposit is entirely satisfied, it is interpreted that the relationship of simultaneous performance continues to exist as it is, therefore, since the lease contract is terminated, it shall be interpreted that the lessor has actually performed the obligation to the person who received the claim for the repayment of the remaining lease deposit after the termination of the lease contract, or provided the performance of the obligation to the person who received the claim for the repayment of the lease deposit, but the lessor has lost the right of defense of simultaneous performance due to reasons such as delayed performance by failing to specify the object, etc.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the right of defense or burden of proof.

The grounds of appeal cannot be accepted.

4. As to the fourth proposal

The court below rejected the defendant's assertion on the ground that it is not acknowledged that the non-party company did not pay additional KRW 100 million to the non-party company since January 1, 1997, even though it agreed not to pay additional KRW 100 million to the non-party company, and thus, it should deduct the monthly rent of KRW 100 million from the monthly rent of KRW 50 million to be paid by January 1, 1999, because the monthly rent of KRW 50 million should be deducted from the lease deposit to be refunded by the non-party company to the non-party company.

Compared with the evidence of the record, the court below's finding and determination is just, and there is no violation of law by failing to exhaust all necessary deliberations or by violating the rules of evidence such as empirical rule.

The grounds of appeal cannot be accepted.

5. Conclusion

Therefore, the defendant's appeal is dismissed, and all costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)