[1] In a case where a beneficiary pays compensation for the equivalent value as restitution in a lawsuit for revocation of a fraudulent act, whether it is permissible for the beneficiary to seize and receive an order to enforce the creditor's claim for compensation for the equivalent value with an executive title in order to execute another separate claim against the creditor who exercises the right of revocation (affirmative)

[2] Whether a claim prohibited by set-off may be subject to an assignment order by compulsory execution, unless it falls under a claim prohibited from seizure (affirmative)

[1] In a lawsuit for revocation of a fraudulent act, where a beneficiary pays compensation for value to a creditor who exercises the right of revocation as restitution, the beneficiary cannot assert that the beneficiary offsets his/her claim against a debtor on the ground that he/she is the creditor against the debtor in the lawsuit for revocation of a fraudulent act, or deducts the creditor who exercises the right of revocation from compensation for value on the ground that he/she has paid the debtor the money in the name of compensation. However, in order to execute another separate claim held by the beneficiary against the creditor who exercises the right of revocation, the beneficiary is allowed to attach and obtain an order of preservation of the creditor's claim for value to the beneficiary with the title of execution. This differs from the content of set-off or voluntary deduction based on the beneficiary's claim against the debtor. In addition, in cases where the creditor seizes the claim against the third debtor, it is not prohibited to seize the claim even if the garnishee and the third debtor are the creditor, and it cannot be deemed unlawful.

[2] Even if a claim is prohibited from set-off, it can be the object of an assignment order by compulsory execution unless it falls under the claim prohibited from seizure.

[1] Articles 406(1), 407, and 492 of the Civil Act; Articles 227 and 229 of the Civil Execution Act / [2] Article 492 of the Civil Act; Articles 229 and 246 of the Civil Execution Act

[1] Supreme Court Decision 9Da63183 delivered on June 1, 2001 (Gong2001Ha, 1498) / [2] Supreme Court Order 93Ma182 delivered on March 16, 1994 (Gong1994Ha, 3058)

No. 201

Incheon District Court Order 2016Ra566 dated March 2, 2017

The reappeal is dismissed.

The grounds of reappeal are examined.

1. The record reveals the following facts.

The Nonparty, a creditor, filed a lawsuit against the Nonparty seeking damages against the Nonparty and was rendered a partial winning judgment (Seoul Central District Court Decision 2013Da6846, 30061 Decided June 27, 2014). Thereafter, based on the executory judgment of the foregoing case, the Nonparty filed a claim seizure and assignment order with the Incheon Central District Court (Seoul Central District Court Decision 2016Da13404 Decided March 17, 2016, Supreme Court Decision 2016Da17323 Decided July 7, 2016) regarding the amount up to KRW 176,606,00,00, which is the claimed amount, and the claim seizure and assignment order was issued on June 30, 2016.

The Re-Appellant appealed on the ground that the legal principles on the above claim attachment and assignment order were erroneous and contrary to the good faith principle, but the lower court dismissed it.

2. In a lawsuit for revocation of a fraudulent act, where a beneficiary pays compensation for value to a creditor who exercises the right of revocation as restitution, the beneficiary cannot assert that he/she offsets his/her claim against a debtor on the ground that he/she is a creditor against a debtor in the lawsuit for revocation of a fraudulent act, or deducts the creditor who exercises the right of revocation from compensation for value on the ground that he/she has paid the debtor the amount of money in the name of compensation (see Supreme Court Decision 9Da63183, Jun. 1, 2001). However, in order to execute another separate claim against a creditor who exercises the right of revocation, the beneficiary is allowed to attach and obtain an order to attach the above creditor's claim for value to the beneficiary with the title of execution for execution of the other separate claim that the beneficiary has against the creditor who exercises the right of revocation. This is different from that of a set-off or an arbitrary deduction based on the beneficiary's claim against the debtor. In addition, it is not prohibited from seizure even where the garnishee and the garnishee are the creditor.

Furthermore, even if a claim is prohibited from set-off, it can be subject to an assignment order by compulsory execution unless it falls under the claim prohibited from seizure (see Supreme Court Order 93Ma1822, 1823, March 16, 1994).

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court’s determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine regarding the requirements for claim attachment and assignment order, nor by exceeding the principle of

3. The reappeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)