In case where a collection creditor loses the ability of collection due to the withdrawal, etc. of a request for a seizure and collection order, etc. while the debtor's performance lawsuit is pending, whether the debtor can recover the standing as a party (affirmative)

If there exists a seizure and collection order, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a lawsuit for performance against the claims subject to seizure. However, if the collection creditor loses the capacity of collection due to the debtor's withdrawal of application for the seizure and collection order, etc. during the course of the performance lawsuit, the debtor shall recover the standing to be the party. Such circumstances are matters to be examined and determined ex officio by the court, even if the party does not assert it as the matter to be examined ex officio, and if the requirements such as the standing to be the party are not satisfied or such defects are cured after

Article 51 of the Civil Procedure Act, Article 229(2) of the Civil Execution Act

Supreme Court Decision 2001Da51510 Decided March 26, 2004, Supreme Court Decision 2007Da63362 Decided November 29, 2007

Seoul High Court Decision 200Na1448 delivered on January 1, 200

Suwon-si (Attorney Kim Jong-jin, Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na120230 decided June 24, 2010

The part of the lower judgment against the Plaintiff on KRW 91,707,00 and damages for delay thereof shall be reversed, and this part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

If there exists a seizure and collection order, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a performance lawsuit against the claims subject to seizure, but if the collection creditor loses the ability to collect due to the debtor's withdrawal of application for the seizure and collection order, etc. during the course of the performance lawsuit, the debtor shall recover the standing to be a party. Such circumstances are matters to be examined and determined ex officio by the court, even if the party does not assert it as the matter to be ex officio, and where the requirements for lawsuit, such as the standing to be a party, are not satisfied or such defects are cured after the closing of arguments at the court of final appeal, the court shall also consider them in the final appeal (see Supreme Court Decisions 2001Da51510, Mar. 26, 2004; 2007Da6362, Nov. 29, 2007

According to the reasoning of the judgment below, the court below rejected the lawsuit of this case on the ground that the non-party was disqualified as a party to the lawsuit claiming the payment of the purchase price refund claim of this case against the defendant, which is a seized claim, by obtaining a seizure and collection order as to the claim for the refund of the purchase price refund of this case from Suwon District Court 2007TT (Case No. 1 omitted). However, according to the records, the records reveal the fact that the non-party submitted to the Suwon District Court on September 28, 2010, which was after the judgment of the court below, an application for the seizure and

According to the above legal principles and the above facts, the Plaintiff’s dismissal of the instant lawsuit on the ground that the Plaintiff was not a party standing to file a lawsuit seeking the payment of the instant sales price refund due to the withdrawal of an application for the above attachment and collection order, etc., and thus, the judgment below rejected the instant lawsuit on the ground that the Plaintiff was not a party standing. The allegation contained in the grounds

Therefore, the part of the judgment of the court below against the plaintiff as to KRW 91,707,00 and damages for delay thereof shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)