[1] Whether the deposit claim constitutes a claim prohibiting seizure where the object of the claim prohibiting seizure is deposited in the debtor's deposit account (negative)

[2] Whether a court of execution may cancel the whole or part of a seizure order pursuant to Article 579-2 of the Civil Procedure Act (affirmative), and whether a debtor's application against a court of execution should be made to cancel the seizure order (affirmative) where the subject matter of the prohibition of seizure is deposited in the debtor's deposit account and the effect of prohibition of seizure of the deposit claim does not extend

[1] Where the object of the prohibition of seizure is deposited in the debtor's deposit account, the prohibition of seizure of the deposit claim is no longer effective against the debtor's deposit claim, and such deposit does not constitute the claim of prohibition of seizure.

[2] The purpose of the prohibition of seizure should be taken into account even in cases where the object of the prohibition of seizure is deposited in the debtor's deposit account, and the effect of the prohibition of seizure is no longer effective against the deposit claim. Thus, the court of execution may cancel the whole or part of the seizure order by taking into account the debtor's living conditions and other circumstances at the debtor's request, as stipulated in Article 579-2 of the Civil Procedure Act. However, the above provisions of the Civil Procedure Act purport to harmonize the interests of the creditor and the debtor at an appropriate level and take flexible provisional measures accordingly, thereby ensuring the appropriateness of execution. For this reason, there is a request from the debtor against the court of execution to cancel the whole

[1] Article 579 of the Civil Procedure Act / [2] Articles 557, 579, and 579-2 of the Civil Procedure Act; Article 43(1) of the Private School Act; Article 22(1) of the Act on the Budgeting and Management of Subsidies

[1] [2] Supreme Court Order 96Ma1302, 1303 dated December 24, 1996 (Gong1997Sang, 527) / [1] Supreme Court Order 97Ma96, 967 dated March 16, 1998 (Gong198Sang, 1126)

Appellant (Attorney Park Young-young, Counsel for the plaintiff-appellant)

School Foundation Hack Private Teaching Institutes

Seoul Bank, Inc.

Seoul District Court Order 99Ra2431 dated July 6, 1999

The part of the order of the court below that dismissed the claim attachment and assignment order issued by the first instance court and that part of the order is dismissed. The debtor's appeal against the above part is dismissed.

The grounds of reappeal are examined.

1. Facts acknowledged by the court below

The court below acknowledged the following facts based on the records.

A. The debtor is a school foundation that establishes and operates four schools, such as Taeduk High School. The debtor has become incapable of paying honorary retirement allowances to 25 teachers working in the above schools due to the debt amounting to KRW 12,000,000,000, and applied for subsidies to the Seoul Special Metropolitan City Office of Education other than the applicant.

B. On February 27, 1999, the Office of Education, under the Act on the Budgeting and Management of Subsidies and the Ordinance on the Financial Support for Private Schools, determined to pay a subsidy of KRW 1,079,552,700 to the debtor's private middle school teachers only for the purpose of use, and deposited the said subsidy of KRW 1,079,552,70 on March 31 of the same year with a free deposit account (Account Number omitted) in the debtor's name located at the friendly moving point of Seoul Bank, a stock company, the third debtor.

C. On June 16, 1993, the creditor applied for the attachment and assignment order of claims on March 26, 1999 based on the executory exemplification of the judgment in the loan case No. 93Gahap3213 against the debtor on June 16, 1993. On March 29, the creditor applied for the attachment and assignment order of claims on March 26, 199. On the 29th of the same month, the creditor was served on the debtor on the order of the above claims stated in common deposits, fixed deposits, regular deposits, savings deposits, free savings deposits, money trusts, money trusts, company-free deposits, free savings, and separate deposits, in the order of the above claims, in several same trust trusts, the balance or deposit balance, and the balance of savings deposits in order from 162,045,785 won to 162,04,785 won, and the above bond seizure and assignment order were served on the debtor on March 31, 199.

2. The judgment of the court below

The court below held that this case's deposit is inappropriate because it is not subject to seizure 1. Article 43(1) of the Private School Act and Article 22(1) of the Act on the Budgeting and Management of Subsidies, which is granted for support of private school education as it is deemed necessary for the promotion of education from the State or local governments under Article 43(1) of the Private School Act and Article 22(1) of the Act on the Budgeting and Management of Subsidies, and its purpose other than its original purpose is to receive and pay subsidies only between the State or local governments, and thus, its claims cannot be subject to compulsory execution. Thus, if the object of this case's claim is deposited in the debtor's deposit account, its claims lose the identity with the previous claim, and seizure order is ordered without the debtor's examination, it is reasonable to revoke the debtor's deposit claim's order under Article 97 of the Civil Procedure Act's order under the premise that the remaining amount of money deposited by the debtor's deposit account within 97 days from the date of issuance of the order under the premise that the above claim's deposit claim cannot be seized and seized.

3. Judgment of the Supreme Court

First of all, the judgment of the court below that held that the deposit of this case does not constitute the claim to be prohibited from seizure is justifiable as it is in accordance with the opinion of the Supreme Court (see Supreme Court Order 96Ma1302, 1303, Dec. 24, 1996). In such a case, the original purpose of the prohibition of seizure should be taken into consideration, and as such, the court of execution may cancel all or part of the seizure order upon request of the debtor pursuant to Article 579-2 of the Civil Procedure Act, in consideration of the debtor's living conditions and other circumstances.

However, the above provisions of the Civil Procedure Act purport to harmonize the interests of the creditor and the debtor at an appropriate level and to promote the appropriateness of the execution by taking flexible provisional measures accordingly. For such reasons, in order to cancel the whole or part of the seizure order, the application of the debtor must be made against the execution court. It is apparent in accordance with the above provisions of the Civil Procedure Act and the legislative intent of the above Act. In examining the records of this case, there is no trace of the debtor's application against the execution court.

Therefore, the court below's revocation of a part of the seizure order of this case by taking into account the living conditions of the creditor and the debtor, etc. although the court below did not make a request, was erroneous in the misapprehension of legal principles as to the provisions of the Civil Procedure Act, which affected the conclusion of the judgment. Thus,

4. Therefore, of the order of the court below, the part of the dismissal of the motion for seizure and assignment order of this case by the creditor corresponding to the part of the order of the court below's cancellation of the seizure and assignment order of this case, and the part of the case is deemed sufficient for this court to judge, and thus, the following is made pursuant to Article 407 subparagraph 1 of the Civil Procedure

The debtor's appeal to the purport that the deposit of this case constitutes the claim prohibited from seizure is without merit from the above point of view, and the court below revoked and dismissed the debtor's appeal to "the part of dismissing the creditor's application for the seizure and assignment order of this case's claim, which was revoked and dismissed by the court of first instance," and it is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)