In cases where an assignment order becomes null and void due to concurrent seizure, whether the whole creditor may claim a dividend amount according to the ratio of the claim against the third creditor on the ground that the seizure has the effect of demanding a distribution.

(i)In the event that an assignment order based on a claim without priority is null and void due to competition of seizure, the seizure is deemed to be the same as the so-called demand for distribution, even if the third-party debtor voluntarily deposited the amount of claims pursuant to Article 581 of the Civil Procedure Act and reported the reasons therefor to the court of execution, unless otherwise, the seizure takes effect concurrently, and the distribution procedure is not carried out in accordance with Article 585 of the same Act, as well as the distribution procedure is established by the court of execution. Therefore, an execution creditor who merely takes a demand for distribution does not acquire the collection right provided for in Article 563 of the same Act, as long as it is not the acquisition of the collection right provided for in Article 563 of the same Act, there is no ground for directly requesting the third-party debtor who is not the court

Article 563 of the Civil Procedure Act

Plaintiff

Defendant

Seoul Central District Court (68Ga5117) in the first instance trial (Supreme Court Decision 68Da5117)

The appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The defendant shall pay 214,851 won to the plaintiff.

Litigation costs shall be borne by the defendant.

A provisional execution may be carried out only under paragraph (1).

It is the same as the purport of the claim that the original judgment is revoked.

The plaintiff's attorney asserted that the non-party 1 had the right to claim the return of the deposit of KRW 700,000 against the defendant, but the plaintiff had the provisional attachment of KRW 310,00,00 among them around June 1967 and received the attachment and order again, which later transferred to the original attachment, and then served on the defendant who is the non-party 1 and the non-party 3 debtor on May 3, 68, 198, respectively. As for KRW 600,000 among the above claims (the entire claim) above, the non-party 2 had already been executed with the attachment and the assignment order of KRW 60,00 as of February 9, 68, which had already been executed with the attachment and the whole amount of the claim, the above two assignment orders were returned to the effect of the distribution claim, but the effect of the distribution is that the non-party 3 acquires the amount of KRW 10,000,00,000 for the plaintiff's share in the distribution procedure.

However, even if the attachment seems to be the same as the so-called demand for distribution in a case where an assignment order based on a claim without a priority is null and void due to the concurrent attachment as above, if the third-party debtor voluntarily deposited the obligation pursuant to Article 581 of the Civil Procedure Act and reported the reason to the court of execution, unless otherwise, the seizure takes effect concurrently, and the distribution procedure is not carried out under Article 585 of the same Act as a matter of course, and the distribution procedure is also established by the court of execution. Since the execution creditor who simply takes a demand for distribution does not acquire the collection right pursuant to Article 563 of the same Act, the execution creditor who takes a mere demand for distribution does not have any ground for requesting the delivery of the amount directly to the third party debtor who is not the court of execution. Thus, in this case where the third-party debtor did not have any assertion on the right to demand partial payment of the original claim under Article 581 of the Civil Procedure Act, the plaintiff's demand for the distribution cannot be dismissed at least by applying Article 580 of the Civil Procedure Act to the plaintiff's demand for the distribution of the same purport.

Judges Kim Jung-so (Presiding Judge)