Where there exists a seizure and collection order for a claim, a person who has the standing to file a lawsuit for the performance of the claim subject to seizure against the garnishee (i.e., the collection obligee), and a party standing to be a party to the claim, ex officio whether the matters are subject to ex officio examination, and arguments and proof in the final appeal

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

Supreme Court Decision 2007Da60417 Decided September 25, 2008

Plaintiff

Lawing Loss Insurance Co., Ltd. (Law Firm Vindication, Attorney Jeon Jae-in, Counsel for the plaintiff-appellant)

Daejeon High Court (Cheongju) Decision 2008Na727 decided September 29, 2009

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

We examine the grounds of appeal.

1. Where there exists a seizure and collection order, only the collection creditor may file a lawsuit for performance against the garnishee, and the debtor loses the standing to file a lawsuit for performance against the seized claim. The matters concerning the standing to be a party are related to the requirements of the lawsuit, and the court shall investigate and determine it ex officio at the time of the closing of argument at the fact-finding court. Although the parties did not assert it until the time of closing of argument at the fact-finding court, even if the parties did not assert it, the court may newly assert and prove it (see Supreme Court Decision 2007Da60417, Sept. 25, 2008, etc.

2. According to the allegations in the grounds of appeal and the records, the plaintiff sought reimbursement against the defendant for the insurance money due to a general fire insurance contract. However, prior to the closing of argument in the court below, the plaintiff's creditors received a seizure and collection order of the above insurance money from the Cheongju District Court Decision 2008TTTTTTY 2008TTTY 944 and 2008TTTTT1227, and around that time, it can be known that each time the seizure and collection order of the above insurance money was served to the defendant who is the third debtor. In light of the above legal principles, since the seizure and collection order of the above insurance money was served to the defendant, the plaintiff can only file a lawsuit for performance of the above insurance money claim due to the delivery of the collection order

Therefore, the judgment of the court below, which was made on the premise that the plaintiff has the standing to file a performance suit against the defendant as to the above insurance claim, cannot be maintained as it is.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of 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.

Justices Yang Sung-tae (Presiding Justice)