Suwon District Court 2013Gadan15915 ( October 16, 2014)

The seizure of this case is null and void against a non-existent claim

As seen earlier, the seized claim had already been fully repaid to the assignee of the claim prior to service on the garnishee, and thus, the seizure of this case is null and void as it is against a non-existent claim.

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

2014Na46140 Cancellation of the registration of creation of a neighboring mortgage

S in depthS

Korea

Suwon District Court 2013Gadan15915

April 30, 2015

June 4, 2015

1. The defendant's appeal is dismissed.

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

1. Purport of claim

Defendant Republic of Korea will implement the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed on December 15, 2010 with respect to the real estate stated in the attached Form to the Plaintiff by Suwon District Court.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim against the defendant is dismissed.

1. Quotation of judgment of the first instance;

이 법원이 이 사건에 관하여 쓸 판결 이유는, 제1심 판결문 종 4쪽 8줄의 "2. 나. ⑵ ㈏ 판단" 부분을 아래와 같이 고쳐쓰는 외에는, 제1심 판결 이유 중 해당 부분 기재와 같으므로, 민사소송법 제420조 본문에 의하여 이를 그대로 인용한다.

2. The part to be mard;

Do Governor Decision Doz.

The requisite for setting up against a third party of a designated assignment of claims under Article 450(2) of the Civil Act is applicable to cases where a third party acquires a legal status that cannot be compatible with the status of the transferee with respect to the transferred claim during the existence of the transferred claim. Thus, where the transferred claim has already been extinguished due to repayment, etc., even if the seizure and collection order for the claim is served after the delivery of the claim, the seizure and collection order for the transferred claim is null and void as it is against the non-existent claim, and there is no room for the problem of the above requisite for setting up a claim (see, e.g., Supreme Court Decision 2003Da3742

According to the evidence Nos. 2 and 2, the defendant can recognize the fact that the defendant publicly announced the notification of the seizure of the instant mortgage-backed claims to SeochoG, a debtor on January 7, 2014. Thus, the effect of the seizure of this case was effective by service on the 22th of the same month after the expiration of 14 days from the date of the public announcement, and as seen earlier, the above seized claim was already repaid to the transferee of the claim prior to the service to the third debtor, and thus, the seizure of this case is null and void because it is a non-existent claim.

3. Conclusion

Therefore, the judgment of the court of first instance is just based on its conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.