[1] The scope of permission for the correction of a decision of correction concerning a claim attachment and assignment order and the time when the decision of correction takes effect

[2] The validity of the claim attachment and assignment order indicated by the deceased as the garnishee, and whether the decision of correction to correct the third obligor's indication from the deceased as the inheritor (affirmative)

[3] The time when the decision of correction that revises the garnishee's indication from the deceased as the inheritor becomes effective

[4] The validity of service on the deceased

[1] Since the attachment and assignment order in the execution of claims is a kind of decision, if it is obvious that there is an error in miscalculation, clerical error, or any other similar error in the attachment and assignment order, the court may make a decision of correction, either ex officio or upon request of the party concerned (Articles 210(1) and 197 of the Civil Procedure Act): Provided, That where the recognition of the identity of the attachment and assignment order is hindered due to the decision of correction, it is not permitted as the content of the original attachment and assignment order is substantially changed, and where the decision of correction of the attachment and assignment order becomes final and conclusive, the original attachment and assignment order has the same effect as that of the original attachment and assignment order with the contents revised from the beginning as it is integrated with the decision of correction, and therefore, the original attachment and assignment order becomes effective retroactively from the time when the original original copy of the attachment and assignment

[2] In a case where a creditor has filed an application for an attachment and assignment order with a third obligor who was aware of the death of the deceased, and the person liable for the obligation to the debtor is not the deceased but the deceased's heir, barring any special circumstances, barring any special circumstance, it is obvious to indicate the deceased as the third obligor. In addition, in the attachment and assignment order, in a case where the third obligor's indication is the deceased, it can be confirmed if any claim is attached and all of which is based on the objective circumstance of the entry and death of the attachment and assignment order. Thus, it cannot be deemed that the third obligor's indication is detrimental to the recognition of the identity of the attachment and assignment order by correcting the third obligor's indication from the deceased to the inheritor. Thus, the decision to rectify the third obligor's indication from the deceased to the inheritor is allowed.

[3] In the procedure of the execution of claims, the third obligor is not an executory party but merely an interested party and thus, it cannot be deemed that the third obligor died before filing an application for the attachment and assignment order does not satisfy the requirements for compulsory execution against the obligor. Thus, even if there was an attachment and assignment order indicating the deceased as the third obligor, such error may be corrected according to the above decision of correction. Thus, if a decision to rectify the third obligor's indication from the deceased as his heir is made and the decision of correction becomes final and conclusive, the attachment and assignment order becomes effective retroactively to the time when the original attachment and assignment order was served on the third obligor.

[4] The service carried out against the deceased, in principle, becomes null and void due to its illegality, but if the service of the document is practically received by the deceased's heir, the service becomes effective as the service on the deceased's heir at the time of recovery of the defect. Thus, even if the service of the original copy of the seizure and assignment order or that of the decision of correction was made against the third-party debtor who had already died, if the heir actually received the original copy of the seizure and assignment order or that of the decision of correction, the service becomes effective as the service on the deceased'

[1] Articles 197(1), 210, 57, 561, and 564 of the Civil Procedure Act / [2] Articles 197(1), 210, 557, 561, and 564 of the Civil Procedure Act / [3] Articles 197(1), 210, 557, 561, and 564 of the Civil Procedure Act / [4] Articles 165, 561, and 564 of the Civil Procedure Act

[1] Supreme Court Order 4294Du1674 delivered on January 25, 1962 (No. 10-1, 284), Supreme Court Decision 69Da83 delivered on March 24, 1970 (No. 18-1, 287) / [4] Supreme Court Decision 66Da1584 delivered on October 21, 1966 (No. 14-3, 177), Supreme Court Decision 68Nu190 delivered on January 21, 196 (No. 17-1, 14), Supreme Court Decision 77Da687 delivered on February 28, 1978 (Gong1978, 10727), Supreme Court Decision 93Nu1391390 delivered on April 26, 194 (No. 196392)

Plaintiff (Attorney Han-sung et al., Counsel for the plaintiff-appellant)

Defendant

Defendant joining the Defendant (Attorney Yoon Jae-sik, Counsel for defendant-appellant)

Seoul High Court Decision 94Na31831 delivered on February 14, 1995

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are also examined.

1. According to the reasoning of the judgment of the court below, since the non-party 1 was ordered to purchase the above non-party 2's building on February 27, 191, which was the deceased non-party 3's non-party 1's non-party 3 assignment order for the above non-party 3's non-party 1' and the non-party 2's assignment order for the above non-party 3's non-party 1's non-party 3's non-party 4's non-party 9's non-party 2's non-party 9's non-party 4's non-party 9's non-party 2's non-party 3's non-party 4's non-party 9's non-party 2's non-party 3's non-party 1' and the above non-party 2's non-party 3's non-party 9's non-party 2's non-party 1's non-party 9's non-party 2's non-party 9'

2. Since the attachment and assignment order in the execution of claims is a kind of decision, if it is obvious that there is an error in miscalculation, clerical error, or any other similar error in the attachment and assignment order, the court may, ex officio or upon request of the party concerned (Articles 210(1) and 197 of the Civil Procedure Act): Provided, That in a case where the recognition of the identity of the attachment and assignment order is hindered due to the decision of correction, the original attachment and assignment order shall not be permitted as being substantially altered. In addition, in a case where the decision of correction of the attachment and assignment order becomes final and conclusive, the original attachment and assignment order has the same effect as the original attachment and assignment order was combined with the decision of correction, and thus, the original attachment and assignment order becomes effective retroactively from the time when the original copy of the original attachment and assignment order was served on the garnishee (see Supreme Court Order 4294Du674, Jan. 25, 1962).

However, barring any special circumstances, where a creditor already died and applies for the attachment and assignment order with the third obligor, the person liable for the obligation to the debtor is not the deceased but the third obligor. Thus, in the attachment and assignment order, in case where the third obligor's indication is the deceased person, it is obvious that the third obligor's indication is indicated as the third obligor. In addition, in the attachment and assignment order, in a case where the third obligor's indication is the deceased person, it can be confirmed regardless of which claim is attached and assignment order under the objective circumstances, such as the attachment and assignment order's death. Thus, the third obligor's indication is corrected from the deceased person to the heir, and thus it cannot be deemed that the decision to correct the third obligor's indication from the deceased person to the heir is permitted. In addition, in the procedure of execution of the claim, the third obligor's indication of the attachment and assignment order is merely an interested person, and it cannot be deemed that the third obligor's execution requirement against the debtor was not met even if the third obligor died before the application for the attachment and assignment order becomes final and conclusive.

On the other hand, service performed against a deceased person shall be null and void in principle as a matter of law (see, e.g., Supreme Court Decisions 66Da1584, Oct. 21, 196; 77Da687, Feb. 28, 1978; 93Nu1360, Apr. 26, 1994); however, in cases where a deceased person’s heir actually receives the service document, the service document is cured, and its service takes effect as a service to the inheritor at that time; thus, even if the service of the original copy of the seizure and assignment order or of the decision of correction was conducted against a third-party debtor who had already died, if the inheritor actually received the original copy or the original copy of the seizure and assignment order, that service becomes effective as a service to the inheritor at that time, and its immediate appeal period will run from that time.

However, according to the facts and records established by the court below, the plaintiff was aware that the non-party 2, who is the garnishee, had already died and applied for a seizure and assignment order with the third debtor, and the third debtor on March 30, 1993 received the attachment and assignment order indicated as the above deceased, and the third debtor on May 10 of the same year was notified that the above deceased died, and then the third debtor's indication was corrected from the above deceased as the inheritor at the above deceased on May 10 of the same year. The delivery of the original copy and the original copy of the assignment order of the seizure and assignment order of this case was conducted with respect to the above deceased on May 12 of the same year, 193, but the defendant, as the inheritor, received the above original copy of each of the above decisions on April 12, 1993, but as well as the defendant, the debtor, etc., received each of the above original of each decision at each time, and thus, they became final and conclusive at each time without any immediate appeal.

In light of the above circumstances, even if the third obligor’s indication of the attachment and assignment order of this case became the deceased, such error may be corrected by the decision of correction of the third obligor’s indication from the deceased, and as long as the decision of correction of the contents of this case became final and conclusive after the decision of correction was issued, the attachment and assignment order of this case becomes effective retroactively to the time when the third obligor was served on the defendant with the original copy of the attachment and assignment order of this case. Thus, the original copy of the attachment and assignment order of this case shall be deemed to have been served on the defendant on April 1, 1993, which was actually received by the defendant, and thus, the claim for the refund of the purchase price of this case was lawfully transferred to the plaintiff

Nevertheless, the court below's decision that the correction of the attachment and assignment order of this case is not permitted, and even if it is permitted to do household affairs, the decision that the correction order of this case becomes effective only when the original copy of the decision was delivered to the defendant, and thus, is not erroneous in the misapprehension of legal principles as to the attachment and assignment order or the decision of correction, and it is obvious that this affected the judgment, and therefore, it is reasonable to point this out.

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 Song Jin-hun (Presiding Justice)