In cases where a debtor satisfies the requirements for setting up against the obligor by transferring a claim subject to attachment or provisional attachment and by giving notice with a fixed date, etc., whether an invalid attachment is valid in cases where the seized claim is returned to the obligor due to the invalidation of the attachment of the above claim by another creditor of the debtor, or the re-transfer of the claim to the debtor, etc. (negative in principle)

Articles 223 and 227 of the Civil Execution Act, Article 450 of the Civil Act

Supreme Court Decision 2010Da57213, 57220 Decided October 28, 2010

Creditors

The debtor

Third Obligor;

Suwon District Court Order 2017Ra3802 dated June 3, 2019

The order of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of reappeal are examined.

1. According to the record, the following facts are revealed.

A. On March 31, 2016, the debtor transferred his/her claim against the garnishee (one billion won according to the judgment in favor of the debtor and damages for delay thereof; hereinafter “instant claim”) to the re-appellant’s creditor, who is the re-appellant. On the same day, the creditor notified the third obligor of the transfer of the claim by content-certified mail upon delegation by the debtor.

B. On January 10, 2017, the head of the sericultural Tax Office, the head of the Gangwon District Tax Office, and the head of the Gwanak District Tax Office attached the instant claim against the debtor (Sail Tax Office KRW 122,530, 3,838, 983, 870, 40, 514,080, 530, 530, 3,838, 983, 870, 500, 500, and 40,000,000

C. On August 23, 2017, the obligee re-transfered the instant claim to the obligor and notified the third obligor of the transfer of the claim.

D. On October 10, 2017, the creditor filed an application for attachment and assignment order with respect to the claim (hereinafter “instant seized claim”) of Suwon District Court KRW 1,518,239,869, which is the claimed amount, based on the original copy of the payment order with respect to the debtor on the basis of the original copy of the payment order with respect to the debtor.

2. A. The lower court maintained the first instance judgment dismissing the part of an assignment order in the creditor’s motion on the ground that the amount of seizure following the seizure on January 10, 2017, by the director of the sericultural Tax Office, etc., was concurrent in excess of the instant seized claim, based on the time when the assignment order issued upon the creditor’s motion was served on the garnishee.

B. However, the lower judgment cannot be accepted for the following reasons.

(1) If a debtor satisfies the requirements for setting up against the transfer of a claim by a notice, etc. with a fixed date after transferring the claim subject to attachment or provisional attachment, even if other creditors of the debtor seize the claim thereafter, the claims subject to attachment are not effective as at the time of attachment because they do not exist. Barring such circumstances as where the transfer of claim becomes invalid from the beginning, barring such circumstances as where the transfer of claim becomes invalid after the transfer of claim becomes invalid, or where the claims subject to attachment is returned to the debtor on the grounds of a retransfer, etc. to the debtor, such circumstance alone cannot be deemed null and void (see Supreme Court Decision 2010Da57213, 5720, Oct. 28, 2010

(2) In light of the above legal principles, the following can be seen.

Inasmuch as the instant claim had already been transferred to the creditor before January 10, 2017 by the head of the sericultural Tax Office, etc., which attached the instant claim, and meets the requirements for setting up against the assignment of the claim through a notice with a fixed date, all seizure by the head of the sericultural Tax Office, etc. is null and void solely on the ground that the obligee again transferred the instant claim to the obligor. Accordingly, it cannot be deemed that the invalid seizure is null and void solely on the ground that the assignment order requested by the creditor and issued was served to the garnishee. Therefore, it cannot be deemed that

The judgment below erred by misapprehending the legal principles as to the effect of seizure on transferred claims, thereby adversely affecting the judgment. The ground of reappeal assigning this error is with merit.

3. Therefore, the order of the court below is reversed, and the case is 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 Lee Dong-won (Presiding Justice)