In case where an assignment order made on the deceased person to the garnishee has been served on his heir, the validity of the assignment order and the revocation of its correction;

In a claim attachment and assignment order, the third obligor is not the execution party, but the third obligor is not the execution party, and is merely the content of the indication of the object to specify the seizure claim, so the assignment order in the name of the third obligor is null and void at the time of the application for an assignment order, and even if the obligee received the assignment order against the third obligor who was not aware that the third obligor had died at the time of the application for an assignment order, and the decision was served in the name of the third obligor, it cannot be viewed differently. Thus, it is not allowed to rectify the third obligor in the name of the inheritor.

Articles 563 and 564 of the Civil Procedure Act

Song (Attorney Han-sung et al., Counsel for the defendant-appellant)

Article 10 (Order of Appointment of Assistants)

Seoul Private District Court Decision 93Gahap93705 delivered on June 30, 1994

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

The defendant shall pay to the plaintiff 150,000,000 won with 25 percent interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

The same shall apply to the order.

1. Basic facts

The following facts are either in dispute between the parties or in accordance with Gap evidence 1-1-3, evidence 1-2, evidence 2-1, evidence 3, evidence 4, evidence 1-2, Eul evidence 2-1 through 6, evidence 8-2, Eul evidence 9, evidence 10, and evidence 11-2, and there is no counter-proof otherwise.

A. On February 27, 1991, the non-party 2 entered into a sales contract with the non-party 50,000 won for the purchase of the above 535,00,000 won for the house and 1 store of the reinforced concrete building No. 1 of the above ground No. 99 site and the above 99 site, which is owned by the non-party 2, who is the deceased's father, for the purchase of the above 535,00,000 won for the same day, and the remaining down payment amount of 23,500,000 won for the same day, and the remaining down payment of 23,50,000 won for the intermediate payment of 150,000,000 won for April 20 of the same year, but failed to perform his duty to pay the remaining amount for the above 50,000 won for the cancellation of the sales contract from the above 50,000 won for the above 50,0050.

B. The plaintiff was issued a seizure and assignment order (hereinafter in this case's seizure and assignment order) with respect to the above Yang Chang-seok as the claim of KRW 244,427,571 based on an executory exemplification of the judgment regarding loans claim No. 92Gapo District Court No. 18875, Mar. 30, 1993 for its execution, and the debtor was ordered to deliver the above Yang Chang-chul and the third debtor's assignment order to the defendant on Nov. 2, 1991 with respect to KRW 150,00,000, which the debtor was against the third debtor on Nov. 2, 1991, and the original copy of the decision was served on Apr. 1, 194, 427, and at that time, the seizure and assignment order became final and conclusive on May 30, 1993, and the above order was served on the defendant No. 2370, Dec. 24, 2003.

C. However, on April 9, 1993, the original copy of the provisional attachment order was served on the defendant on April 26, 1993, with the provisional attachment order of KRW 284,00,00,000 (the first class order of KRW 150,000,000, the second class order of KRW 54,00,000, the first class order of KRW 80,000, the first class order of KRW 80,000, and the second class order of KRW 93Kahap2906, which was issued on April 3, 1993 to secure the execution of promissorysory notes claims against the defendant for the return of the purchase price claim of this case against the defendant, and the original copy of the provisional attachment order was served on the defendant on July 26, 20, 00, and each of the above 3rd class order of KRW 150,00,00,00,000,000.

2. The parties' assertion and judgment

The plaintiff asserted that on April 1, 1993, the attachment and assignment order of this case was served on the defendant, and the plaintiff was entirely responsible for the claim for the refund of the purchase price of this case against the above Yang Changdongok, and that on May 10, 1993, the defendant succeeded to the above dongok upon the death of the above dongok, and that on May 10, 199, the defendant was liable for the payment of KRW 150,000,00 to the plaintiff since the defendant corrected the garnishee as the third debtor at the time of the plaintiff's application, the defendant and the assistant intervenor received the attachment and assignment order of this case as the third debtor at the time of the plaintiff's application and received the attachment and assignment order of this case. Thus, even if the third debtor was corrected in the name of the third debtor, the above attachment and assignment order of this case was invalid, and even if the above decision of correction is valid, it becomes invalid after the decision of correction was delivered to the defendant, and thus, the above assignment order of provisional attachment and assignment order of this case cannot be delivered to the defendant.

Therefore, the attachment and assignment order can be corrected within the extent that the identity of the entire claim is recognized, and in the case of determination or correction, the effect of the attachment and assignment order is retroactive to the effective date of the attachment and assignment order before its revision unless there are special circumstances. However, in the attachment and assignment order, the delivery of the assignment order to the third debtor is required, in addition to the debtor, in the case of the attachment and assignment order, and the assignment order is effective. The third debtor has the right to immediate appeal, the third debtor has the former legal status against the debtor, and the third debtor can set up against the creditor with various defenses before his claim is seized, and the third debtor can set off against the third debtor. Although the Civil Procedure Act takes effect when the assignment order becomes final and conclusive after delivery to the third debtor, it does not affect the validity of the assignment order even if the assignment order becomes final and conclusive (Article 563(5) of the Civil Procedure Act). However, in light of the fact that the third debtor's death and the third party's death order cannot be seen as an important element of the attachment and assignment order for the specific debtor's property.

Even if an assignment order with a third-party debtor is valid and the decision of correction is considered to be permitted, if the third-party debtor was corrected from the deceased as his inheritor, the decision of correction shall be deemed to be a new decision with a new effect that does not maintain the identity of the claim. Therefore, for the above reasons, it is reasonable to deem that the above decision of correction is valid only when the decision to correct the third-party debtor as his heir was delivered to his heir. In this case, it is reasonable to say that the supplementary intervenor, the above ruling of correction with the third-party debtor as the defendant was delivered to the defendant, and the above ruling of correction with the third-party debtor was made a provisional attachment of the claim for the claim for the refund of the purchase price of this case. Accordingly, the assignment order of this case

3. Conclusion

Therefore, the plaintiff's claim of this case based on the premise that the assignment order of this case is valid is dismissed without any further reason. Since the judgment of the court of first instance, which has different conclusions, is unfair, the defendant's appeal is accepted and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed, and it is so

Judges Gangnam-gu (Presiding Judge)