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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. As to the instant lawsuit claiming against the Defendant the sum of KRW 35,662,00, including the unpaid deposit, etc., and damages for delay from the day from the day after the original copy of the instant payment order was served to the day of full payment (hereinafter “the instant claim”), the Defendant asserted that the instant lawsuit filed by the Plaintiff is unlawful, since the Plaintiff’s obligee received the seizure and collection order regarding the instant claim, since it was subject to the Plaintiff’s obligee’s seizure and collection order.
2. Where an order of seizure and collection is issued for the judgment claim, only the collection creditor may institute a lawsuit for performance against the garnishee, and the debtor loses the standing to institute a lawsuit for performance against the seized claim;
(See Supreme Court Decision 9Da2388 Decided April 11, 200 (see, e.g., Supreme Court Decision 99Da2388, Apr. 11, 200). According to each of the statements in the Evidence Nos. 7 and 8 regarding the instant case, C received a seizure and collection order regarding the instant claim with the amount claimed as KRW 56,890,236, Aug. 6, 2015, with the amount claimed as 56,890,236 from the Gwangju District Court’s Net Branch Branch of the Gwangju District Court’s 2015, Aug. 6, 2015; and it is recognized that the said seizure and collection order was served on the Defendant, who is the garnishee on August 11, 2015; however, the Plaintiff filed an immediate appeal against the said seizure and collection order as the Gwangju District Court’s 2015Ra405, Sept. 10, 2015.
However, the above seizure and collection amount exceeded the plaintiff's claim amount of this case, and the plaintiff lost the standing to file the lawsuit of this case against the defendant as to the claim of this case. Thus, the defendant's defense pointing this out has merit.
3. In conclusion, the Plaintiff’s lawsuit of this case is unlawful and thus, it is so decided as per Disposition.