[1] Whether a court of Korea can exercise jurisdiction over a foreign country's judicial act as defendant (affirmative in principle)

[2] Whether the court of the Republic of Korea has jurisdiction over issuing a collection order, and whether jurisdiction over a collection order, in cases where jurisdiction over a collection order is not recognized (affirmative with qualification) and whether jurisdiction over a collection order is not recognized (affirmative)

[3] The case holding that in case where Gap's creditor Eul, who had resided in the Republic of Korea and worked at the USF headquarters, requested the payment of the amount for collection after receiving a claim seizure and collection order against the US against the retirement allowances, wages, etc. held by the third party debtor at the Korean court, the court of the Republic of Korea requested the payment of the amount for collection

[1] Unless there are special circumstances where a foreign judicial act conducted within the territory of the Republic of Korea belongs to, or closely related to, a sovereign activity, the exercise of jurisdiction over, a foreign country's sovereign activity is likely to unfairly interfere with the foreign country's sovereign activity, a court of the Republic of Korea may exercise jurisdiction with the foreign country as the defendant

[2] The execution court unilaterally ordered a third-party debtor to prohibit the payment of the obligation to the execution creditor, and accordingly, the third-party debtor still bears the obligation to pay the obligation to the execution creditor who received the collection order, even if the execution creditor pays the obligation to the execution debtor. As can be seen, the seizure and collection order is not an execution of the property owned by the third-party debtor, but a third-party debtor is directly related to the execution creditor's exercise of compulsory power, such as the order of prohibition of payment, collection order, etc. If the third-party debtor is not the execution party, the exercise of jurisdiction over the seizure and collection order of the third-party debtor should be more careful than exercising jurisdiction over the judgment procedure against the foreign country. Furthermore, considering the above, if the seizure and collection order of the third-party debtor is deemed to have been unilaterally issued to the execution creditor, not to have the execution title against the third-party debtor, but to have been issued to the foreign execution creditor, it should be deemed that the Korean court has jurisdiction over the pertinent claim for compulsory execution against the foreign execution against the execution creditor.

[3] In a case where Gap's creditor Eul, who had resided in the Republic of Korea and worked in the United States Armed Forces Headquarters, sought payment of the amount of retirement allowance and wages, etc. that Eul had against the United States of America after receiving a collection order, the case holding that Eul and the United States of America are not entitled to exercise jurisdiction as a matter of course with respect to the lawsuit for collection against the United States of America, and that Eul's claim against Eul does not constitute a claim arising from the unlawful act or omission by an employee under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, and that the court of the Republic of Korea did not have jurisdiction as to the procedure for collection and compulsory execution under Article 23 (5) or (6) of the "Agreement on Facilities and Areas and the Status of United States Armed Forces" (hereinafter "Korea-U.S. Administrative Agreement"), and the court of the Republic of Korea has no jurisdiction as to the procedure for collection and compulsory execution under Article 23 (6) of the Korea-U.S. Administrative Agreement, and thus, does not have jurisdiction over Gap's claims for compulsory execution.

[1] Articles 6(1) and 101 of the Constitution / [2] Articles 6(1) and 101 of the Constitution of the Republic of Korea, Articles 223, 227, and 229 of the Civil Execution Act / [3] Articles 23(5) and 23(6) of the Agreement between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty

[1] Supreme Court en banc Decision 97Da39216 delivered on December 17, 1998 (Gong199Sang, 121)

National Federation of Bus Transport Business Associations (Law Firm Korea, Attorneys Lee Young-dae et al., Counsel for the plaintiff-appellant)

United States

Seoul High Court Decision 2004Na43604 decided January 21, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. With respect to a foreign judicial act conducted within the territory of the Republic of Korea, barring special circumstances where the exercise of jurisdiction over such act is likely to unfairly interfere with the foreign sovereign activity, barring special circumstances, such as where the foreign judicial act belongs to or closely related to the sovereign activity, the court of the Republic of Korea may exercise jurisdiction over such foreign country as defendant (see Supreme Court en banc Decision 97Da39216, Dec. 17, 1998, etc.).

However, the execution court unilaterally ordered a third party debtor to prohibit the payment of the debt to the execution creditor, and accordingly, the third party debtor still bears the obligation to pay the debt to the execution creditor who received the collection order, even if the execution creditor pays the debt to the execution debtor. As such, even though the third party debtor is not the execution of the property owned by the third party debtor, and the third party debtor is not the execution party, the third party debtor is not the execution party of the seizure and collection order, and when the third party has issued the seizure and collection order, the third party is the direct party of the execution court's exercise of the power, such as the payment prohibition order, and the collection order, and the exercise of jurisdiction over the third party debtor's seizure and collection order is more careful than exercising jurisdiction over the foreign court's judgment procedure. Furthermore, considering the above, if the seizure and collection order are unilaterally issued to the execution creditor's execution right, not to the third party debtor's execution right, it is more necessary to view that the court of Korea has jurisdiction over the pertinent foreign court's execution order as the execution creditor's judicial act, etc.

한편 대한민국과 아메리카합중국 간의 상호방위조약 제4조에 의한 시설과 구역 및 대한민국에서의 합중국군대의 지위에 관한 협정(이하 ‘한미행정협정’이라 한다) 제23조 제5항은 공무집행 중인 합중국 군대의 구성원이나 고용원의 작위나 부작위 또는 합중국 군대가 법률상 책임을 지는 기타의 작위나 부작위 또는 사고로서 대한민국 안에서 대한민국 정부 이외의 제3자에게 손해를 가한 것으로부터 발생하는 청구권의 처리절차에 대하여 규정하고 있는데 위와 같은 청구권이라고 하더라도 그것이 계약에 의한 청구권(contractual claim)인 경우에는 제23조 제5항의 적용 대상에서 제외한다고 규정하고 있고, 한미행정협정 제23조 제6항은 대한민국 안에서 불법한 작위 또는 부작위로서 공무집행 중에 행하여진 것이 아닌 것으로부터 발생한 합중국 군대의 구성원 또는 고용원에 대한 청구권의 처리절차에 대하여 규정하면서 합중국 군대의 고용원이더라도 대한민국 국민이거나 대한민국에 통상적으로 거주하는 고용원인 경우에는 제23조 제6항의 적용대상에서 제외한다고 규정하고 있다. 그리고 2001. 1. 18. 체결된 대한민국과 아메리카합중국 간의 상호방위조약 제4조에 의한 시설과 구역 및 대한민국에서의 합중국군대의 지위에 관한 협정과 관련 합의의사록에 관한 양해사항(이하 ‘양해사항’이라 한다)은 한미행정협정 제23조 제5항 및 제6항과 관련하여 ‘합동위원회는 대한민국 법원에 의한 민사재판권의 행사를 위한 절차를 제정하여야 한다.’고 규정하고 이에 따라 제정된 협정 제23조 비형사재판절차에 관한 합동위원회 합의사항 제1호(이하 ‘합의사항’이라 한다) 제4조의 ㈑에서는 ‘합중국 정부가 합중국 군대의 구성원, 군속 또는 고용인에게 지급할 금원은 합중국 법률이 허용하는 범위 내에서 압류 기타 대한민국 관할법원에 의하여 명하여진 강제집행의 대상이 될 수 있다’고 규정하고 있다. 이와 같은 규정의 체계 및 그 문언에 의하면 위 합의사항은 한미행정협정 제23조 제5항 또는 제6항에 따른 청구권의 실행 절차 등에 관한 규정이라고 할 것이다.

2. According to the reasoning of the judgment below and the records, the non-party is a resident in the Republic of Korea who works as a high-tension electrical engineer at the USF headquarters, and the plaintiff and the non-party hold a claim for the return of provisional payment against the non-party pursuant to the judgment of the Seoul District Court 9Na85700 case. The plaintiff requested the Seoul District Court branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch branch office of Seoul District Court for the seizure and collection order of the claim against the non-party's retirement allowance and wage, etc., and the above court accepted it and issued the seizure and collection order (hereinafter "the seizure and collection order of this case").

Examining the above facts in light of the legal principles as seen earlier, first of all, there is no judicial relationship between the Plaintiff and the Defendant, and thus, the Korean court cannot exercise jurisdiction over the instant lawsuit filed against the Defendant as a matter of course.

Furthermore, in order to satisfy the claims for the return of provisional payments which the plaintiff has against the non-party, the court of Korea has jurisdiction over issuing a seizure and collection order against the non-party as the third party obligor. The claims for the return of provisional payments against the non-party are not claims arising from the plaintiff's unlawful act or omission by an employer under Article 23 (5) and (6) of the Korea-U.S. Administrative Agreement, and the non-party is not claims as stipulated under Article 23 (6) of the Korea-U.S. Administrative Agreement. Since the non-party is a resident of the Republic of Korea who is excluded under Article 23 (6) of the Korea-U.S. Administrative Agreement, the plaintiff's claims for the return of provisional payments against the non-party do not constitute claims as stipulated under Article 23 (5) or (6) of the Korea-U.S. Administrative Agreement. Accordingly, the above agreement is not applicable to compulsory execution for the return of provisional payments claims held by the plaintiff against the non-party, and the court of Korea has no jurisdiction over the non-party's claims for the collection order.

Therefore, the decision of the court below that the lawsuit of this case is unlawful because it does not have jurisdiction in the Korean court is just in its conclusion and there is no violation of law as otherwise alleged in the

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)