Plaintiff (Attorney Lee Dong-soo et al., Counsel for plaintiff-appellee)

Korea Land Trust Co., Ltd. (Law Firm Roddd, Attorney Choi Young-young, Counsel for the plaintiff-appellant)

September 17, 2009

Seoul Eastern District Court Decision 2007Gahap15293 Decided December 12, 2008

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 5 million won with 5% interest per annum from September 13, 2004 to the delivery date of a copy of the complaint, and 20% interest per annum from the next day to the full payment date.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, except for the first instance court’s first instance judgment’s second through third (c) among the grounds for 7th instance judgment’s second to 9th instance judgment’s second instance judgment’s second to 7th instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s second instance judgment’s reasoning is as stated in the part

“(C) The Defendant filed an appeal against the above first instance judgment as Seoul High Court Decision 2008Na82270, and the above court revoked the part of the first instance judgment against the Defendant on June 3, 2009, and rendered a judgment that the Defendant did not have any obligation to return the down payment of KRW 310,000,000 against Nonparty 5, which falls under that part, and the judgment became final and conclusive around that time.”

2. Determination

The plaintiff's assignment order of this case is valid, and it is invalid because it constitutes an assignment order issued under the competition of seizure.

A. The plaintiff's assignment order was delivered to the defendant on September 13, 2004 and confirmed on October 1, 2004 as mentioned above. Considering the whole purport of the statement No. 5-1, No. 2, and No. 6-1, and No. 5-2 and No. 8-1, and the court of first instance as a result of the inquiry into the high-sea market at the court of first instance, the plaintiff's assignment order of this case was delivered to the defendant on September 13, 2004, and the total amount of KRW 141,470,740, which is the local tax arrears of the non-party 1, and KRW 146-1,68, which is the total amount of KRW 166-16, which is the provisional seizure order of this case, was delivered to the defendant on March 2, 2006, and the amount of KRW 166-1,666, which is the provisional seizure order of this case.

B. Article 229(3) of the Civil Execution Act provides that "where an assignment order has been issued, a claim seized shall be transferred to an execution creditor in lieu of the payment for the attached claim, and Article 229(5) provides that "in case other creditors have made a seizure, provisional seizure or demand for distribution with respect to such monetary claim until the assignment order has been served on the garnishee, the assignment order shall not become effective." Article 231 provides that "in case where the assignment order has become final and conclusive, the assignment order shall be deemed to have been discharged by the debtor at the time when the assignment order was served on the garnishee." Article 235(1) provides that "in case where a new seizure order has been issued in excess of the remainder after the part of the claim was partially seized, each seizure shall be deemed to have become effective on the whole claim, and Article 291 provides that this provision

Therefore, when an assignment order becomes final and conclusive, the claims subject to seizure shall be naturally transferred to all creditors within the scope of execution claims retroactively from the time when the assignment order was served on the garnishee, and simultaneously become effective when the extinction of execution claims takes effect: Provided, That where several seizure orders or provisional seizure orders are issued with respect to the same claims, where the sum of each seizure order or provisional seizure order exceeds the amount of claims subject to seizure, the relevant seizure order constitutes concurrent seizure, and where seizure of the claims subject to seizure competes until the assignment order is served on the garnishee, the assignment order is null

C. In a case where an assignment order has been issued under the overlapping condition of a future non-determined claim, whether the assignment order becomes null and void due to the competition of the seizure should not be determined on the basis of the amount of the claim already finalized, but on the basis of the amount of the contractual claim under the contract at the time when the assignment order was served on the third debtor (see Supreme Court Decision 98Da15439, Aug. 21, 1998). In addition, in a case where the assignment order was issued under the competition of seizure before the provisional attachment execution becomes null and void after the notice of withdrawal of the preceding provisional attachment application was served on the third debtor and the provisional attachment execution becomes null and void, the assignment order becomes null and void once becomes null and void due to the concurrent execution of the provisional attachment after it was issued (see Supreme Court Decision 2007Da73826, Jan. 17, 2008).

D. As seen earlier, the assignment order of this case and the seizure order of Goyang-si and the provisional seizure order of Nonparty 4 are the claim for dividend payment to be paid by Nonparty 1 to the Defendant after the Defendant, the garnishee, sold each of the real estate of this case, and the final sale of each of the real estate of this case on July 18, 2006. As such, the assignment order of this case and the seizure order of Goyang-si and the provisional seizure order of Nonparty 4, as well as the assignment order of this case, should be regarded as the seizure of the future non-determinedable claim where an uncertain element is included in the determination of the amount of the above seized claim. Therefore, whether the assignment order of this case becomes invalid due to the competition of seizure, shall not be determined based on the amount of the seized claim finally finalized, and it shall be determined based on the amount of the seized claim as of September 13, 204 on which the assignment order was issued to the Defendant.

When the assignment order of this case was delivered, the dividend amount that Non-party 1 can receive from the defendant is equivalent to 583,080,642 won. On the other hand, the amount of seizure order of Non-party 4 is 141,470,740 won, and the amount of seizure order of Non-party 4 is 300,000,000 won, and the amount of seizure of the assignment order of this case is 50,000,000 won. The sum is 941,470,740 won (141,470,740 won + 300,000,000 won + 500,000,000 won + the amount of the above seizure claim amount is more than the dividend amount of 583,080,642 won, which is the object of seizure, and thus, the plaintiff's assignment order of this case becomes null and void after the issuance of the assignment order of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case based on an invalid assignment order is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Sung-dae (Presiding Judge) (Presiding Justice)