[1] The validity of an order of seizure and assignment where the entire claim is subject to future condition or is likely to be extinguished

[2] In a case where a seizure and assignment order for future claims is lawfully made based on an executory exemplification of a judgment, whether it is possible to grant an executory exemplification of a judgment (negative with qualification)

[1] If an order of seizure and assignment based on the name of debt with executory power has been duly made, the seized claim is considered to have been transferred to all creditors in lieu of payment within the scope of executory claim and the obligor is deemed to have discharged the obligation, and compulsory execution is already completed regardless of the process of collecting the claim by the obligee who received the seizure and assignment order, so even if the executory claim is a future conditional claim or is likely to be extinguished, the effect of the seizure and assignment order of the claim is not affected.

[2] If a creditor is given an execution clause based on a judgment with a provisional execution declaration and received an order of seizure and in whole with respect to a claim, such as salary, etc. to be received by a debtor in the future, compulsory execution based on the judgment with a provisional execution declaration shall be deemed to have already been completed unless the above assignment order is null and void. Thus, barring any assertion and proof that there is no claim in the future, such as salary, etc. of a debtor, or that a creditor is given an order of seizure and in whole, limited to only part of the amount of a claim to be repaid, it

[1] Article 564 of the Civil Procedure Act / [2] Articles 484, 485, and 564 of the Civil Procedure Act

[1] Supreme Court Decision 76Da626 delivered on May 25, 1976 (Gong1976, 9189), Supreme Court Decision 84Ma13 delivered on June 26, 1984 (Gong1984, 1420), Supreme Court Decision 95Da4681 delivered on September 26, 1995 (Gong195Ha, 3521)

Special Appeal (Attorney Jeon Soo-soo, Counsel for the defendant-appellant)

Busan District Court Order 98Kagi4937 dated February 6, 1999

The special appeal is dismissed.

1. As to the first ground for appeal

Where a re-grant of the execution clause becomes possible at the request of the creditor holding the previous execution clause, unless there is a reason to re-grant the execution clause, the debtor may raise an objection against the new execution clause, and seek the revocation of the execution clause.

In light of the record, the claimant (hereinafter the applicant) raised an objection against the grant of execution clause to the effect that re-grant of the execution clause is unlawful inasmuch as there is no reason to re-grant the execution clause even though the execution clause is not illegal, when the execution claim is extinguished when the seizure and assignment order of the claim based on the judgment granted by the execution clause became lawful and the execution clause is delivered to the third debtor.

Therefore, a special appellant's argument that the applicant's assertion does not constitute a ground for objection against grant of execution clause cannot be accepted.

2. On the grounds of appeal Nos. 2 and 3

As long as an order of seizure and assignment based on the name of debt with executory power has been duly made, a seized claim shall be deemed to have been naturally transferred to the creditor of the execution claim in lieu of payment within the scope of the execution claim and the obligor has discharged the obligation, and subsequent execution is already completed regardless of the process that the creditor who received the seizure and assignment order has collected the claim, so even if the execution claim is conditional or may be extinguished in the future, the validity of the order of seizure and assignment of the claim shall not be affected (see, e.g., Supreme Court Decisions 95Da4681, Sept. 26, 1995; 84Ma13, Jun. 26, 1984).

The lower court determined that, inasmuch as the special appellant was given an execution clause based on the judgment of the provisional execution sentence and the applicant received an order of seizure and in whole with respect to the claims, such as salary, etc. that the applicant would receive from Kim Jong-si in the future, compulsory execution based on the judgment of the provisional execution sentence was already completed unless the assignment order becomes null and void, it was unlawful to re-assign the same executory exemplification of the

The recognition and determination by the lower court is justifiable in accordance with the aforementioned legal doctrine in this case where the circumstance that no claim, such as the applicant’s salary, etc. has occurred or that a special appellant was ordered to seize and pay only a part of the amount of the claim that should be paid by the special appellant, is not asserted and proved. In so doing, the lower court did not err by misapprehending the legal doctrine as to the validity of an assignment order or payment,

We cannot accept the argument of the reason for appeal.

3. Conclusion

Therefore, the special appeal of this case is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)