[1] Measures to be taken by the court of execution on the grounds of obstruction of execution

[2] Whether a seizure, provisional seizure, or provisional disposition of prohibition of disposal against an executory creditor's claim constitutes a cause for interference with execution (affirmative)

[3] In a case where an application is filed at the same time with an order of seizure of claims and an entire order, whether the legality thereof should be determined separately (affirmative), and in a case where an execution claim is seized by an executory creditor, whether an executory creditor may apply for an order of seizure against the debtor (affirmative)

[1] In the commencement or continuation of a compulsory execution, the execution court shall ex officio investigate the existence of the reasons for the obstruction of the execution, and shall dismiss or dismiss the application for the execution if there are such reasons prior to the commencement of the execution. If it finds it after commencement of the compulsory execution, even though the reasons for the obstruction of the execution exist, the execution procedure already should be revoked ex officio.

[2] In case where a creditor of execution creditor has seized, provisionally seized, or provisionally placed a claim indicated in the name of debt, the execution creditor's act of disposal such as collection and transfer by the execution creditor and debtor's act of disposal is prohibited by seizure, etc. and the execution creditor's act in violation of this prohibition cannot oppose the execution creditor's creditor. Thus, the execution agency cannot execute the claim unless seizure, etc. is rescinded. Thus,

[3] Even if an application for a seizure order and an assignment order are filed at the same time, the propriety of the seizure order and an assignment order shall be separately determined, and the reason why the seizure of the execution claim becomes an obstacle to execution is because the execution court cannot take any and all dispositions detrimental to the execution creditor against the validity of the seizure order, etc. Even in cases where the execution claim is seized, the creditor of the execution claim may exercise the execution claim to the extent that it does not prejudice the creditor who seized the execution claim, unless the collection order and an assignment order are followed later. Although the seizure order takes place in the compulsory execution procedure, it does not go against the validity of the seizure order as it does not violate the execution claim, since the execution creditor's seizure of the execution claim against the debtor does not interfere with the execution order.

[1] Article 503 of the Civil Procedure Act / [2] Articles 557, 561, 696, and 714 of the Civil Procedure Act / [3] Articles 57, 561, and 563 of the Civil Procedure Act

Re-appellant

Seoul District Court Order 99Ra6589 dated June 29, 2000

The part of the order of the court below that dismissed a creditor's request for seizure of a claim against the first instance court shall be reversed, and the debtor's appeal against this part shall be dismissed. The remaining reappeals shall be dismissed.

The grounds of reappeal are examined.

1. According to the record, the court of first instance issued the claim seizure and assignment order of this case by the Seoul District Court based on the executory exemplification of the conciliation protocol between the creditor (re-appellant) and the debtor, based on the records, pursuant to the Seoul District Court's 98 money37384, and the creditor's claim seizure and assignment order against the debtor on December 30, 1998, prior to the issuance date of the claim seizure and assignment order of this case, the non-party Seoul District Court issued a provisional seizure order against the creditor on December 30, 1998. The debtor received a provisional seizure order against the debtor on December 30, 1998, and recognized that the debtor was served with the provisional seizure order at that time. As long as the creditor's execution claim of this case was provisionally seized as above, the creditor lost the creditor's right of collection, and revoked the first instance court'

2. In the commencement or continuation of compulsory execution, a court of execution shall ex officio investigate the existence of the reasons for the obstruction of execution, and shall dismiss or dismiss an application for execution if there exist such reasons prior to the commencement of execution. If it finds it after commencement of compulsory execution, even though the reasons for obstruction of execution exist, it shall revoke ex officio the procedure for execution already made. In addition, in a case where a creditor of execution has imposed provisional attachment or provisional attachment on a claim indicated in the name of obligation, or provisional attachment, provisional attachment, or provisional injunction, the executor’s act of disposal such as collection and transfer by the creditor of execution is prohibited, and the obligor’s performance cannot be set up against the creditor of the executor’s creditor, and thus, the executor cannot execute it unless the seizure, etc. is revoked

Therefore, the court below's revocation of a creditor's assignment order and dismissal of a creditor's assignment order on the ground that the execution bond of this case existed on the basis of the provisional attachment before the attachment and assignment order of this case by the Chang Enterprise Co., Ltd., and the court below's dismissal of the creditor's assignment order is just, and the ground for reappeal disputing this issue is not extinguished, as long as the provisional attachment of Chang Enterprise Co., Ltd. is not revoked even if it is unfair

However, even if an application for a seizure order and an assignment order are filed at the same time, the legality of the seizure order and an assignment order should be determined separately, and the reason why the seizure of an execution bond becomes an obstacle to execution is because the execution court cannot take any and all dispositions detrimental to the execution creditor against the validity of the seizure order. Even in cases where an execution bond is seized, the creditor of the execution bond can exercise his claim to the extent that it does not prejudice the creditor of the execution bond, unless the collection order and an assignment order are followed thereafter, unless the execution bond is followed. However, unlike the compulsory execution procedure, the seizure order does not violate the validity of the execution bond because it does not harm the creditor of the execution bond who seized the execution bond. Therefore, the seizure of the execution bond does not constitute an obstacle to execution in the seizure order of this case. However, the court below revoked the creditor's request for the seizure order of the first instance court based on its judgment that there is an obstacle to execution, which affected the conclusion of the judgment by misapprehending the legal principles as to the grounds for and the result of the seizure order under the Civil Procedure Act.

3. Therefore, the part of the order of the court below that dismissed the creditor's request for the seizure of a claim is reversed, and this part of the case is reasonable by this court's ruling under Article 407 subparagraph 1 of the Civil Procedure Act. Thus, the debtor's appeal against this part is dismissed on the grounds as seen earlier. The remaining reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon (Presiding Justice)