In case where a creditor files a lawsuit seeking the collection of a deposit claim against a third party debtor based on the seizure and collection order, the person who bears the burden of proving that the debtor's deposit balance and the total amount of money not seized pursuant to Article 195 subparagraph 3 of the Civil Execution Act does not exceed 1.5 million won (=creditor)

In light of the following: (a) the existence of a claim subject to seizure in a lawsuit for collection based on a collection order based on a seizure and collection order, the obligee must prove the existence of the claim; (b) Articles 195 subparag. 3 and 246(1)8 of the Civil Execution Act; and Article 7 of the Enforcement Decree of the Civil Execution Act, comprehensively taking into account the purport, form, etc., the obligee’s proof of the existence of the claim subject to seizure does not constitute a claim subject to prohibition of seizure where the obligee files a lawsuit seeking the collection of the claim against the third obligor based on the seizure and collection order; (c) in other words, the obligee’s proof that the balance of the personal deposit and the total amount of money not seized pursuant

Articles 195 subparag. 3 and 246(1)8 of the Civil Execution Act, Article 7 of the Enforcement Decree of the Civil Execution Act

[Plaintiff-Appellant] Plaintiff 2005Da47175 decided Jan. 11, 2007 (Gong2007Sang, 275)

Han-il loan Co., Ltd.

Korean Bank, Inc.

Seoul Central District Court Decision 2013Na64 decided April 24, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 246(1) Subparagraph 8 of the Civil Execution Act and Article 7 of the Enforcement Decree of the same Act provide that a debtor's balance of 1.5 million won per each debtor's account (However, where there are money not seized pursuant to Article 195 subparagraph 3 of the Civil Execution Act, the amount subtracting the amount from 1.5 million won) shall not be seized. The above provision is a mandatory provision to guarantee the debtor's minimum livelihood. As such, a seizure order against a deposit claim the seizure of which is prohibited is in violation of a mandatory provision, and is null and void, and is also null and void under the substantive law (see Supreme Court Decision 2008Da11702, Jun. 12, 2008, etc.).

In a lawsuit for collection based on a collection order, the existence of a claim subject to seizure is to be proved by the creditor (see Supreme Court Decision 2005Da47175, Jan. 11, 2007) and comprehensively considering the purport, form, etc. of each of the above provisions, in a case where the creditor files a lawsuit seeking the collection of the claim against the third debtor based on the seizure and collection order, the claim subject to collection does not constitute the claim subject to prohibition of seizure. In other words, the fact that the balance of individual deposits of the debtor and the total amount of money not seized pursuant to Article 195 subparag. 3 of the Civil Execution Act exceeds 1.5 million won shall be proved by the creditor.

In this regard, the lower court’s dismissal of the Plaintiff’s claim on the ground that the Plaintiff failed to prove that the claim subject to collection does not constitute the claim subject to prohibition of seizure, is justifiable, and there were no errors by misapprehending the legal doctrine on the burden of proof in the collection lawsuit.

2. As to the grounds of appeal Nos. 2 and 3

The allegation in this part of the grounds of appeal is unlawful because it did not expressly state what error was found in the lower judgment.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)