2016Da209788. Contract deposit, etc.

A Stock Company

1. B

2. C

Busan High Court Decision 2014Na53455 Decided January 21, 2016

June 9, 2016

The judgment below is reversed, and the case is remanded to Busan High Court.

1. Where there exists a seizure and collection order, only the claimant may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a lawsuit for performance against the seized claim. Such circumstances should be examined and determined ex officio by the court, even if the parties do not assert the matters to be examined ex officio, and should also be taken into account in the final appeal in cases where the circumstances, such as the standing to sue, occur after the closing of arguments at the fact-finding court (see, e.g., Supreme Court Decision 2001Da51510, Mar. 26, 2004).

2. According to the Defendants’ allegations in the grounds of appeal and the record, 1.3 Busan District Court Decision 200 million won out of the amount based on the executory exemplification of the judgment in Busan District Court Decision 2014Gahap11454 decided Nov. 23, 2015, which was 2015, after the date of closing of argument in the original judgment, as Busan District Court Decision 2014Na1454 decided Nov. 26, 2015; 200 million won is the claim claim amount; 3.4.3. The Busan District Court Decision 2014Na46177 decided Oct. 4, 207 and the Busan High Court Decision 2014Na545 decided Apr. 16, 205 (the first judgment and the judgment of the court below), among the claims owned by the Defendant under the above 36.4. The above judgment below's claim amount, including the above claim amount, among the above claim amount, the Busan High Court Decision 2015Da14615250 decided Apr.

Examining the above facts in light of the legal principles as seen earlier, since each of the above claims seizure and collection orders was served on the Defendants, who are the garnishee, the Plaintiff lost the standing to file a lawsuit for performance against each of the above claims seizure and collection orders, the court below should re-determine the scope of the Plaintiff’s standing to file a lawsuit against the Defendants, among the damage claims asserted by the Plaintiff against the Defendants in this case.

Therefore, the judgment of the court below, which was made on the premise that the plaintiff is eligible to bring a performance lawsuit against the defendants as to the whole of the above damage claim, cannot be maintained as is.

3. Therefore, without examining the Defendant’s remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee