[1] The effect of the seizure of wage claims which were already due at the time of the delivery of the seizure order but which were not paid to workers (effective)

[2] In case where the so-called mixed deposit money has been distributed, whether a person claiming that the deposit money was not paid or repaid despite the existence of the right to receive the payment may file a lawsuit of demurrer against the distribution against the other creditors stated in the distribution schedule (affirmative)

[1] Article 223 of the Civil Execution Act / [2] Article 487 of the Civil Act, Articles 154(1) and 248 of the Civil Execution Act

[2] Supreme Court Decision 2003Da29456 decided Jan. 26, 2006 (Gong2006Sang, 293)

Plaintiff

Suwon Fisheries Cooperatives et al.

Chuncheon District Court Decision 2004Na3236 decided May 17, 2005

The judgment of the court below is reversed, and the case is remanded to the Gangnam Branch Branch Court Panel Division.

1. In full view of the admitted evidence, the court below rejected on August 8, 2003, on the basis of the Plaintiff’s loan claim amounting to KRW 80,000,000 as principal against the Plaintiff, the Defendant’s maximum money received a seizure and collection order as to the Plaintiff’s wage and retirement allowance claim against the Gangwon-do High Medical Center (hereinafter “Seoul High Medical Center”) from the Chuncheon District Court Branch Branch Order No. 2003TY 1223, and on August 20, 2003, Defendant Samcheon-si also received a seizure and collection order as to the Plaintiff’s wage and retirement allowance claim amounting to KRW 26 million as principal against the Plaintiff’s joint and several surety claim amounting to KRW 20,000,000,000 from KRW 20,000,000,0000, KRW 360,000,000,000 from the Plaintiff’s dividends claim amounting to KRW 2630,5,5,0645,06,06,04,00.

In order to have the eligibility for seizure as an object of execution, that is, the claim shall belong to the execution obligor and be partially responsible for the debtor's property. The time to determine whether the claim belongs to the debtor's responsible property is the subject of seizure, in principle, since the seizure order is served on the garnishee and the confirmed claim becomes the subject of seizure. Therefore, the seizure of the wage claim which was already due but has not been paid to the worker is valid at the time of service of the seizure order, and the above judgment of the court below is just in light of these legal principles, and there is no error of law by misunderstanding the legal principles as to the seizure

2. The lower court rejected the Plaintiff’s assertion that the excess portion’s dividends are unjustifiable, on the grounds that there is no evidence to support that the deposit of three medical personnel contains wage and retirement allowances exceeding the seizure claim, and that the dividend amount did not constitute a dispute against the Defendants who received the dividend amount, and that the total amount of 6,068,00 won in 11,228,960 won deposited by three medical personnel and the total amount of 6,000 won in arrears, which was the amount to be distributed in the dividend procedure in the instant case, exceeds a half of the balance obtained by deducting the tax and public charges from the Plaintiff’s wage and retirement allowance, which

However, it is difficult to accept such judgment of the court below for the following reasons.

Since the amount equivalent to 1/2 of the wage, pension, salary, bonus, retirement allowance, retirement pension and other wage claims of similar nature is prohibited from being seized, if the total amount of 6,000 won out of 11,268,960 won deposited by three medical personnel is in arrears for four months, such as November 1, 2002, December, March 2003, seizure on the portion exceeding 1/2 of the balance after deducting the tax and public charges, shall be null and void. Although the plaintiff asserted that the amount of the money deposited by three medical personnel is included in the prohibition of seizure, the court below erred in the misapprehension of legal principles as to the scope of the claim prohibited from seizure, on the premise that the total amount of the money deposited is subject to seizure.

On the other hand, if 6,068,00 won out of 11,268,960 won deposited by Samljin medical personnel is the full amount of wages in arrears for four months including November, 2002, December, 2003, March, and May, 2003, deposit of Samljin medical personnel has the characteristics of deposit for repayment to the plaintiff who is the debtor (the portion exceeding 1/2 of the balance after deducting taxes and public charges from the delayed payment of wages) and deposit for execution to the defendants who is the execution creditor (the remaining portion). Among them, it is unlawful to conduct distribution by deeming the portion of the deposit as the distribution foundation to be illegal. However, in case of so-called mixed deposit made by mixing the repayment deposit under the Civil Act and the deposit for payment under the distribution schedule, if there is a dispute between the creditor and the amount to be paid under the distribution schedule, it is reasonable to legally settle the dispute through a single procedure, which is a lawsuit of demurrer against the plaintiff, and therefore, the plaintiff is not entitled to receive dividends from 2606 others.

3. Therefore, the lower judgment is reversed, and 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 Kim Ji-hyung (Presiding Justice)