[1] Where an obligor brought a lawsuit against a third party obligor seeking the performance of a monetary claim and the obligee brought a lawsuit for collection against a third party obligor upon obtaining a seizure and collection order regarding the said monetary claim, whether the interruption of prescription that the obligor serves as the subject of right affects the collection obligee (affirmative)

[2] In a case where the performance lawsuit against the garnishee against the garnishee was dismissed as a party standing under the order of seizure and collection, but the collection obligee who acquired a party standing to the seized claim during the course of the performance lawsuit filed a lawsuit for collection against the garnishee within six months from the date the judgment of rejection became final and conclusive, whether the interruption of prescription due to the obligor’s judicial claim is effective in the collection lawsuit against the collection obligee (affirmative)

[1] Even if there exists a seizure and collection order against a monetary claim against a third debtor against the debtor, this is merely granting the creditor the right of collection to collect the seized claim, and the claim that the debtor holds against the third debtor is not transferred or reverted to the collection creditor. Therefore, in case where the debtor files a lawsuit against the third debtor seeking performance of the monetary claim, and the creditor files a lawsuit of collection against the third debtor after obtaining a seizure and collection order against the said monetary claim, the interruption of prescription in the position of the debtor is a kind of collection agency granted the right of collection against the seized claim according to the execution court's authorized power and also extends to the collection creditor who collects the claim.

[2] A judicial claim does not have the effect of interrupting prescription in the case of dismissal, dismissal or withdrawal of a lawsuit, but in such case, if a judicial claim, intervention in bankruptcy proceedings, seizure or provisional seizure, or provisional disposition is made within six months, the prescription period shall be deemed to have been interrupted by the first judicial claim (Article 170 of the Civil Act). Therefore, even if a lawsuit claiming the performance of a monetary claim filed by an obligor against a third-party obligor is dismissed as a party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party-party

[1] Article 169 of the Civil Code / [2] Articles 169 and 170 of the Civil Code

Plaintiff (Law Firm Lee & Lee, Attorneys Kim Jae-soo et al., Counsel for the plaintiff-appellant)

Taek Industrial Co., Ltd. (Law Firm Drie, Attorney Yoon-ju, Counsel for the plaintiff-appellant)

Seoul Eastern District Court Decision 2018Na24389 decided January 30, 2019

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

The grounds of appeal are examined.

1. Whether the interruption of prescription by a judicial claim filed by the debtor affects the collection obligee;

A. Even if there exists a seizure and collection order against a monetary claim against a third party obligor against the obligor, this does not mean that only grants the obligee the right to collect the claims subject to seizure, and thus, the claims held by the obligor against the third party obligor are not transferred or reverted to the collection obligee. Therefore, in cases where the obligor files a lawsuit against the third party obligor seeking performance of the monetary claim, and the obligee files a lawsuit of collection against the third party obligor upon receiving a seizure and collection order against the said monetary claim, the interruption of prescription in the position of the obligor is a kind of collection obligee granted the ability to collect the claims subject to seizure in accordance with the execution order, and also extends to the collection obligee who collects the claims.

Meanwhile, a judicial claim does not have the effect of interrupting prescription in the event of dismissal, dismissal or withdrawal of a lawsuit, but in such case, if a judicial claim, intervention in bankruptcy proceedings, seizure or provisional seizure, or provisional disposition is rendered within six months, the prescription period shall be deemed to have been interrupted by the first judicial claim (Article 170 of the Civil Act). Therefore, even if a lawsuit claiming the performance of a monetary claim filed by an obligor against a third obligor against the third obligor is dismissed as the loss of the standing to be a party based on the seizure and collection order, if the collection obligee, who acquired the standing to be a party in lieu of the obligor, files a lawsuit claiming collection against the third obligor within six months from the date the judgment of rejection became final and conclusive during the course of the performance lawsuit, it is reasonable to view that the interruption

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

1) On February 26, 2014, Eo-Development Co., Ltd. (hereinafter “Eo-development”) filed a lawsuit against the Defendant seeking a rent, and was sentenced to the first instance judgment on January 14, 2016, stating that “the Defendant would pay Eo-Development 1,284,890,284 won and delay damages for KRW 1,122,00,000,000 out of them” (Seoul Eastern District Court 2014Gahap1053).

2) On May 4, 2015, the Plaintiff applied for the attachment and collection order of claims against the obligor and the Defendant as the garnishee by virtue of the executory order for the lease deposit case of the Seoul East Eastern District Court 2015Hu5810, the Plaintiff received the attachment and collection order of claims against the Defendant (hereinafter “instant rent claim”) regarding the amount until the amount reaches KRW 83,452,840, out of the rent claim against the Defendant in the lawsuit claiming the payment of the above rent claim (hereinafter “instant rent claim”), and the instant collection order was served on May 7, 2015.

3) Meanwhile, the Defendant appealed against the judgment of the first instance (Seoul High Court 2016Na2010122). On April 28, 2017, the appellate court rendered a ruling of recommending reconciliation to the effect that “The creditors of e-learning, including the Plaintiff, of the rent claims for which e-mail seeks payment against the Defendant, were not qualified as parties to e-commerce,” and that “the decision of recommending reconciliation was finalized on May 16, 2017, on the remainder of the claims except for the seized portion, the Defendant shall pay 214,804,594 won and delay damages for 136,292,740 won among the claims (hereinafter “the decision of recommending reconciliation of this case”), and the decision of recommending reconciliation of this case became final and conclusive on May 16, 2017.

4) After that, the Plaintiff filed a lawsuit for the collection of this case against the Defendant, who is the garnishee on August 11, 2017, based on the collection order of this case.

C. Based on the foregoing factual basis, the lower court rejected the Defendant’s assertion that “The Plaintiff’s claim for the collection of this case was filed three years after the expiration of the extinctive prescription period under Article 163 of the Civil Act from January 31, 2014, which was the due date for the payment of the instant rent claim, and thus, accepted the Plaintiff’s claim on the following grounds.”

1) The instant claim for the instant rent was interrupted by the filing of a lawsuit for bio-development, which became final and conclusive in the appellate trial to the effect that the statute of limitations was interrupted, and the instant decision on the recommendation for reconciliation became final and conclusive, thereby having the same effect as the

2) The Plaintiff succeeded to the right from bio-development as the collection obligee who received the instant collection order against the instant rent claim after the interruption of prescription became effective due to the filing of the lawsuit for bio-development.

3) As long as the Plaintiff, a successor to this case, filed the instant lawsuit within six months from the time the decision to recommend reconciliation became final and conclusive, the extinctive prescription of the instant rent claim was interrupted on February 26, 2014, which was the first judicial claim against the Defendant.

D. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court’s rejection of the Defendant’s defense of extinctive prescription on the premise that the interruption of extinctive prescription by a judicial claim for bio-development is not appropriate at the time of the reasoning of the lower judgment, but on the premise that the effect of extinctive prescription by a judicial claim for bio-development extends to the Plaintiff granted the right to

2. Scope of claims subject to seizure;

In the decision of recommending reconciliation of this case, the court below acknowledged that the claim for the rent of this case, which is the claim subject to seizure of the collection order of this case, was included in the part that confirmed that the claim subject to seizure of the collection order of this case was not a party to this case. Unlike this, the ground of appeal purporting to the effect that the claim for the claim subject to seizure of the collection order of this case is limited not to the part that confirmed that the defendant was not a party to this case’s right in the decision of recommending reconciliation of this case, but to the part that recognized that the defendant was not a party to this case’s obligation to pay for erroneous development, is merely a ground of appeal, and it does not constitute a legitimate ground of appeal. In addition, even

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 Park Sang-ok (Presiding Justice)