2016Gais6153 Collection Money

Morenk Co., Ltd.

Gangwon-do

January 12, 2017

February 9, 2017

1. The plaintiff's claim is dismissed.

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

The defendant sent KRW 6,479,820 to the plaintiff and its duplicate from July 21, 2014 to the plaintiff

The amount calculated by 5% per annum and 15% per annum from the next day to the day of full payment.

H. D. D.

1. Basic facts

A. On February 25, 2011, A applied for a seizure and collection order (2011TTT 838) with respect to the benefit claim against B to the Defendant at the original Chuncheon District Court Branch (Seoul District Court). On March 9, 2011, the above court issued a seizure and collection order (hereinafter “1 collection order”) on March 9, 201, and the relevant claim seizure and collection order was issued.

3. 10 was served on the Defendant.

B. On July 15, 2014, the Plaintiff filed an application for the attachment and collection order (2014TT 1215) with respect to the claim against the Defendant in the Youngcheon District Court, Chuncheon District Court, as the enforcement title of the payment order finalized by 201j269, and with the claimed amount KRW 6,479,820, the Plaintiff filed an application with the third party obligor’s statement demand under Article 237(1) of the Civil Execution Act.

C. On July 16, 2014, the Youngcheon District Court issued a peremptory notice of the seizure and collection order (hereinafter “the second collection order”) and the Defendant’s statement to the Defendant (hereinafter “Peremptory notice of statement”). On July 21, 2014, the said peremptory notice of the seizure and collection order and the statement peremptory notice were served on the Defendant on July 21, 2014.

D. On July 25, 2014, the Defendant submitted the third obligor’s statement to the Youngcheon District Court Youngcheon District Court, and the said statement is written to the effect that “B retires on December 31, 2013, and there is no claim and there is no fact that other creditors have seized the claim.”

E. On August 27, 2014, A requested the Defendant to pay the collection amount based on the collection order No. 1, and the Defendant paid KRW 20,392,480 to A on September 11, 2014.

【Unsatched Facts, Gap’s evidence 1, Gap’s evidence 2-1, 2, Gap’s evidence 3, Eul’s evidence 1 and 2, and the purport of the whole pleadings

2. Determination as to the cause of action

A. The Plaintiff’s assertion 1) The attachment of A and the Plaintiff’s wage claim against the Defendant in B are concurrent with that of the Plaintiff, the Defendant shall deposit the total amount of the attached claims in the court and report the cause thereof to the court. Since the Defendant violated the deposit obligation, the Defendant’s payment of the collection amount to the Defendant is null and void. The Defendant is obliged to pay the Plaintiff the collection amount of KRW 6,479,820 according to the collection order under Article 2.

2) If the defendant made an accurate statement about the notice of the statement of this case, the plaintiff would have requested the defendant to deposit before the defendant pays the collection amount to A.

B. Determination

1) Determination on the claim for payment of collection amount

According to Article 248 (2) of the Civil Execution Act, a garnishee who has received a written demand for distribution as to a monetary claim shall deposit an amount equivalent to the seized part at the request of a creditor who has participated in the distribution. The plaintiff's assertion to the effect that the defendant is liable to deposit to the defendant in accordance with the above provision is groundless, inasmuch as there is no fact that the defendant has received a written demand for distribution, and there is no fact that the plaintiff

According to Article 248 (3) of the Civil Execution Act, in cases where a seizure or provisional seizure order has been repeatedly issued in excess of the unclaimed portions among monetary claims, the garnishee upon receipt of such order shall deposit the amount equivalent to the total amount of such monetary claims, if requested by the creditor of the seizure or provisional seizure. The third obligor upon receipt of such order shall be deemed to have concurrent seizure of the monetary claims against the defendant in B due to the collection order under Articles 1 and 2. However, the third obligor's obligation to deposit under the above provision arises only when requested by the creditor of the seizure or provisional seizure, and since the plaintiff or A did not request the defendant to deposit, the plaintiff's assertion that he/she has the obligation to deposit to the defendant

Even if a collection order has been issued several times as to the same claim, there is no order between them, and in case the creditor collecting the claim upon receiving the collection order does not only for the satisfaction of his own claim, but also for the seizure and distribution, if there exists any competition or demand for distribution, the collection right is limited to the total amount of the seized claim for all the creditors taking part in the seizure and distribution as a kind of collection institution according to the authorization by the court of execution, and its execution right is limited to the whole amount of the seized claim. If the third debtor repays to the legitimate collection authority, its effect is limited to all the above creditors, and it is not necessary to repay the seized claim in proportion to the amount of the execution claim by both the execution creditor and other collection authorities (Supreme Court Decision 200Da43819 delivered on March 27, 2001).

Therefore, since the Defendant paid KRW 20,392,480 to A on September 11, 2014, and the Defendant also extinguished the claim subject to the second collection order, the Plaintiff’s claim for the collection payment against the Defendant is without merit. 2) Determination as to the claim for damages

The plaintiff's second argument may harm a claim for damages due to the defendant's false statement, so the legitimacy of the claim is examined.

According to Article 237 of the Civil Execution Act, an execution creditor may request the court to make a garnishee state his/her claim in writing within one week from the date of receipt of a seizure order, and if so, the extent thereof, etc. (Paragraph 1). The court shall serve on the garnishee the document ordering the statement under Paragraph 1 (Paragraph 2).

At this time, when the third party obligor makes a false statement intentionally or by negligence, it is deemed that the execution creditor has a duty to compensate for the damage.

On July 25, 2014, the defendant submitted a false statement on July 25, 2014, stating that there is no benefit claim against the defendant in Youngcheon District Court Branch B, and there is no fact that there was no benefit claim against the defendant in Youngcheon District Court Branch B, and that there was no other creditor seizure. If the defendant made a true statement that there was a benefit claim against the defendant in the defendant in B and that there was a delivery of the first collection order, the plaintiff may file a claim against the defendant for the full deposit of the seized claim under Article 248(3) of the Civil Execution Act, and in this case, the defendant has the duty to deposit and report the reason thereof (Article 248(3) and (4) of the Civil Execution Act), and the court of execution commences the distribution procedure (Article 252 subparag. 2 of the Civil Execution Act), and the plaintiff could receive dividends in proportion to the amount of the deposit in proportion to the amount of the claim

However, even if the Defendant paid the full amount of the seized claim to A on September 11, 2014, the Plaintiff had already become effective on July 21, 2014, which was prior to its payment, and as such, A is obligated to deposit the amount collected pursuant to Article 236(2) of the Civil Execution Act and report the grounds therefor. If A deposits, the executing court commences the distribution procedure (Article 252 subparag. 2 of the Civil Execution Act). As such, the Plaintiff may receive dividends in proportion to the amount of the deposit in proportion to the amount of the claim with A. If A fails to perform the deposit obligation, the Plaintiff may deposit the money collected to the court and file a lawsuit seeking to report the grounds therefor (the purport of the claim is that “A shall pay to the Plaintiff the collection amount of KRW 20,392,480 according to the collection claim seizure and collection order, and the reason for the deposit shall be referred to as “A’s report”).

Therefore, although the procedures that the Plaintiff received dividends are somewhat complicated, the same is the same as the result that the Plaintiff is entitled to receive dividends in proportion to the amount of claims A and the Defendant’s false statement, so it cannot be deemed that any damage incurred to the Plaintiff due to the Defendant’s false statement (in the case of insolvent, the Plaintiff may ultimately incur losses that the Plaintiff could not receive dividends, but this is a result according to the contingency that is the existence of financial resources of A, and it is difficult to view that it is a

Therefore, the plaintiff's claim for damages against the defendant is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

Judges' Branch Office Counter

* The ruling of small-sum case may choose not to state the reasons in accordance with Article 11-2(3) of the Trial of Small Claims Act.