In a case where there exists a seizure and collection order against a third party obligor, if the third party obligor is qualified to file a lawsuit for performance of the claim subject to seizure (=collection obligee) and the collection obligee, who has received a collection order, filed a lawsuit against the third party obligor seeking a payment of the collection amount, and then a decision is rendered to suspend compulsory execution against the first instance judgment, which is the title of the execution, in a case where the collection obligee, who has received a collection order, files a lawsuit for the payment of the collection amount against the third party obligor, whether the litigation procedure

Article 51 of the Civil Procedure Act, Article 229(2) of the Civil Execution Act

Supreme Court Decision 99Da23888 delivered on April 11, 2000 (Gong2000Sang, 1170) Supreme Court Order 2005Ma992 Delivered on November 8, 2005

Plaintiff

Medical Corporations, the Commercial Medical Foundation

Daegu District Court Decision 2009Na7913 Decided August 20, 2009

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

Where there exists a seizure and collection order, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor lose the standing to file a lawsuit for performance against the claims subject to seizure (see Supreme Court Decision 99Da23888, Apr. 11, 200, etc.). Meanwhile, in cases where the collection creditor, who received a seizure and collection order with the judgment of the first instance court, files a lawsuit against the third debtor seeking payment of the claims with the execution title, and where there is a decision to suspend compulsory execution against the judgment of the first instance, which is the execution title, the execution title, the collection creditor may no longer take action for the actual collection of the claims subject to seizure (see Supreme Court Order 2005Ma992, Nov. 8, 2005), and solely on such circumstance, it cannot be deemed that the litigation procedure for the payment of the claims subject to seizure is suspended, and thus, it does not interfere with the third debtor’s right to obtain the full exemption of monetary claims by depositing the claims related to the seizure.

Although the reasoning of the judgment below on this part is somewhat inappropriate, the court below rejected the defendant's assertion that it cannot respond to the claim for the payment of the collection amount on the ground that there is a decision to suspend the compulsory execution against the executive title of the collection order in this case, and the conclusion of the court below which accepted the plaintiff's claim is justifiable. Therefore, it is not erroneous in the misapprehension of legal principles

Therefore, the appeal is dismissed and the 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 Yang Sung-tae (Presiding Justice)