[1] In case where there exists a seizure and collection order against the claim, a person who has the standing to file a lawsuit for performance against the garnishee of the claim subject to seizure (=collection creditor)

[2] Whether the matters concerning the standing to be a party are matters to be examined ex officio, and whether they are alleged and proved in the final appeal (affirmative)

[1] Article 51 of the Civil Procedure Act, Article 229 (2) of the Civil Execution Act / [2] Article 51 of the Civil Procedure Act

[1] Supreme Court Decision 99Da23888 delivered on April 11, 200 (Gong2000Sang, 1170) / [2] Supreme Court Decision 89Nu1308 delivered on October 10, 1989 (Gong1989, 1684) Supreme Court Decision 93Da27703 delivered on September 30, 1994 (Gong1994Ha, 282)

Plaintiff

An intervenor;

Defendant (Seoul General Law Firm, Attorneys Choi Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na49682 decided July 24, 2007

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

We examine ex officio.

1. If there exists a seizure and collection order, only the collection creditor can file a lawsuit for performance against the garnishee, and the debtor should lose the standing to file a lawsuit for performance against the seized claim (see Supreme Court Decision 9Da23888 delivered on April 11, 200, etc.).

In addition, the above matters concerning the standing to be a party are related to the litigation requirements, and the court shall investigate and determine them ex officio at the time of the closing of argument in the fact-finding court (see Supreme Court Decision 93Da27703, Sept. 30, 1994, etc.). Although the parties did not assert this by the time of the closing of argument in the fact-finding court, the court may newly assert and prove it (see Supreme Court Decision 89Nu1308, Oct. 10, 198, etc.).

2. According to the Defendant’s supplemental appellate brief (the supplemental appellate brief was submitted in excess of the deadline, and it is examined within the meaning of urging the court to exercise its authority)’s assertion and records, the Plaintiff filed the instant claim against the Defendant on the basis of the claim for reimbursement of down payment and damage claim (hereinafter collectively referred to as “instant claim”) due to the cancellation of the instant sales contract, and the Plaintiff transferred the instant claim to the Intervenor’s successor on April 25, 2006 while the lawsuit of the court below was pending, and notified the Defendant of the above assignment on the same day. However, on March 8, 2006, the said assignment of claim was completed by the Nonparty, who is the Plaintiff’s creditor on March 8, 2006, the said assignment of claim against the Defendant, and the above seizure and collection order was served on the Defendant, who is the obligor on March 15, 2006.

3. Examining the above facts based on the legal principles as seen earlier, in light of the above facts and the records, on March 15, 2006, the above claims seizure and collection order pertaining to the claims of this case were served to the defendant, who is the garnishee, and thus, only the collection creditor can file a lawsuit for performance based on the claims of this case, and the plaintiff lost the standing to file a lawsuit for performance based on the claims of this case. On April 25, 2006, the plaintiff's successor did not lose the identity of the claims of this case by the above assignment of claims and transferred them to the plaintiff's successor. Accordingly, the plaintiff's successor is not entitled to file a lawsuit for performance against the defendant based on the claims of this case. The judgment on the standing of the plaintiff's successor to this case's entitlement to the claims of this case is not different since the plaintiff's assertion on the existence of the above claims seizure and collection order as to the claims of this case and its materials were submitted to the court only when they were submitted to the court

Therefore, the judgment of the court below, which was made on the premise that the intervenor succeeding to the plaintiff had the standing to file a performance lawsuit against the defendant based on the claim of this case, is ultimately based on the erroneous premise, and thus cannot be exempted from reversal.

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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 Yang Sung-tae (Presiding Justice)