In a case where the bankrupt Party A provisionally attached part of the claim for the return of the insurance amount and the claim for the payment of the insurance amount, which the debtor Eul had against Byung who is the third debtor Eul, and the court below accepted the claim for the collection of part of Eul's insurance amount, and upon receiving the claim for the seizure and collection order, Byung paid the remainder of the money except the scope of prohibition of seizure, out of the refund due to the insurance termination contract to be paid by Byung to Eul, the case holding that Byung may claim for the extinguishment of the obligation against Eul.

The bankrupt Gap Co., Ltd. provisionally seized part of the claim for the return of insurance amount and the claim for the payment of insurance amount against Byung Co., Ltd. which the debtor Eul is the third debtor Eul Co., Ltd., and upon receiving the claim for the collection of part of Eul Co., Ltd.'s claim for the insurance amount, Byung Co., Ltd.'s claim for the seizure and collection order, Byung Co., Ltd. paid to Eul Co., Ltd. the remaining money except the scope of

The case holding that Byung Co., Ltd., a third-party obligor, may claim the extinguishment of the obligation against Byung Co., Ltd., on the grounds that the seizure takes place concurrently, and all creditors who have made the deposit can not claim the extinguishment of the obligation, on the grounds that there is no evidence to prove the claim for deposit with Byung Co., Ltd.

Articles 227, 229, 232, and 248(3) of the Civil Execution Act

Korea Deposit Insurance Corporation for the bankrupt Savings Bank

Hansung Damage Insurance Co., Ltd. (Law Firm Baum, Attorney Maximum-il, Counsel for defendant-appellant)

Jeonju District Court Decision 2017Gaso27156 decided September 21, 2017

May 24, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 5,082,050 won with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of the pronouncement of the judgment of this case, and 15% interest per annum from the next day to the day of full payment.

1. Basic facts

A. On July 8, 2011, the Bankrupt Savings Bank Co., Ltd. (hereinafter “Bankruptcy Bank”) rendered an order of the Jeonju District Court 201Kadan2607 Decided July 8, 201, the Nonparty provisionally seized KRW 5,00,000 among the termination of insurance (a termination), invalidation, claim for the return of insurance money at maturity, and claim for the payment of insurance money, which the Nonparty had against the Defendant who is a third debtor. The said provisional attachment order was served on the Defendant on July 13, 201.

B. On April 19, 2013, the Seoul Eastern District Court Decision 2012Na46994 issued a seizure and collection order against KRW 12,206,121 of the insurance claim claims against the non-party debtor against the defendant against the non-party to the third party, based on the executory payment order in the Seoul Eastern District Court Decision 2012Na4694, and issued a seizure and collection order against KRW 12,206,121 of the insurance claim claims against the non-party debtor against the defendant. The original decision of the above order reaches the defendant on April 22, 2013.

C. On May 15, 2013, the beneficiary assets management loan claimed the Defendant to collect the above amount, and on June 11, 2013, the Defendant paid KRW 2,781,910,00, excluding the amount of refund 4,281,910 due to insurance termination that the Defendant should pay to the Nonparty.

D. On March 6, 2017, the Plaintiff appointed as the bankruptcy trustee of the bankrupt transferred the provisional seizure of the above paragraph (a) to the principal seizure by the Jeonju District Court Order 2017TTTTT1458, and the Nonparty received a seizure and collection order against KRW 82,050 (hereinafter “instant claim seizure and collection order”) from among the insurance claim claims against the Defendant owed by the Nonparty to the third obligor. The original copy of the order was served on the Defendant on March 9, 2017.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 to 6, the whole purport of pleading, and facts which are obvious to this court

2. Determination

A. The plaintiff's assertion

In the event of competition between seizure and seizure, when one of the execution creditors makes a request, the third debtor shall deposit the amount equivalent to the total amount of the claim. However, the defendant received a request for collection of the loan for asset management, which is the execution creditor, and paid the total amount of the claim to the loan for asset management without depositing the total amount of the claim. Therefore, the defendant cannot set up against the plaintiff as repayment for the loan for asset management. Therefore, the defendant must pay KRW 5,082,050 according to the seizure and collection order of this case to the plaintiff.

B. Relevant legal principles

In cases where not only a creditor who collects claims upon receipt of a collection order but also a seizure is concurrent or demand for distribution is made from a third party debtor for all creditors taking part in the seizure or distribution according to the authorization of the court of execution, the collection right is limited to the total amount of the claims seized. If the third party debtor performs the obligation to the legitimate creditor, the effect of the third party debtor is limited to all the above creditors, so it does not require concurrent execution creditors of the seized claims and other collection creditors to perform the obligation in proportion to the amount of the execution claims of the other collection right (see, e.g., Supreme Court Decisions 86Meu988, Sept. 9, 1986; 200Da43819, Mar. 27, 2001): Provided, That Article 248(3) of the Civil Execution Act provides that "where a seizure or seizure order has been issued again in excess of the unclaimed portions of the monetary claims, the collection right shall be limited to the amount of the obligation to be deposited by the third party debtor without deposit or provisional execution procedure."

C. Specific determination

In light of the above legal principles, the defendant, who is the third debtor, may claim the discharge of the obligation against all the creditors who are the legitimate collection authority, in the event of competition of seizure, that the respondent has repaid the debt to the assets management loan. However, the creditor who requested the deposit cannot claim the extinguishment of the obligation. However, there is no evidence to prove that the plaintiff claimed the deposit against the defendant. Thus, the defendant can claim the extinguishment of the obligation even to the plaintiff, and the plaintiff's claim is without merit.

3. Conclusion

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

Judges Park Jong-young (Presiding Judge) (Presiding Justice)