[1] Where a garnishee, who is liable to deposit under Article 248(3) of the Civil Execution Act, voluntarily pays to one of the collection creditors, or some of the creditors collect by compulsory execution procedures, etc., whether the garnishee, who requested the deposit, can assert the extinction of the obligation (negative), and in this case, the extent of the amount that the creditor who requested the deposit, can collect from the third debtor (negative)

[2] The case holding that the judgment of the court below which held otherwise erred in the misapprehension of legal principles in a case where Gap may collect Eul only within the extent of the amount which would have been entitled to dividends if Eul deposited the total amount of its collection claims, and Eul may collect them, in case where Eul and other collection creditors deposited Eul's provisional seizure provisional seizure provisional seizure provisional seizure provisional seizure provisional seizure claims upon Eul's deposit claims, although Eul did not comply with Eul's deposit claims under Article 248 (3) of the Civil Execution Act, and Eul did not comply with Eul's deposit claims

[1] Article 248(3) of the Civil Execution Act provides, “Where an order of seizure or provisional seizure has been repeatedly issued in excess of the unclaimed portions among monetary claims, the garnishee served with such order shall deposit the amount equivalent to the total amount of such claims upon request of the garnishee.” In this context, “deposit” means that it is impossible for the garnishee to obtain immunity unless by the method of deposit. In such cases, where the garnishee voluntarily pays to one of the collection creditors or some of the creditors collect debts by compulsory execution procedures, etc., the garnishee cannot assert the extinguishment of the obligation to the creditor who requested deposit and bears the risk of double payment. However, considering that the obligation of deposit under Article 248(3) of the Civil Execution Act is the third obligor’s procedural cooperation arising in the civil execution procedure, and it is reasonable to deem that the third obligor was able to deposit the entire amount of claims with the creditor, even if the third obligor voluntarily pays to one of the collection creditors or collects debts by compulsory execution procedures, etc., the amount to be deposited in excess of the amount to be deposited with the obligee’s right to demand for distribution.

[2] The case holding that the court below erred in the misapprehension of legal principles as to the effect of deposit obligation under Article 248 (3) of the Civil Execution Act, in case where Eul did not respond to the deposit claim under Article 248 (3) of the Civil Execution Act, and Eul did not respond to the deposit claim under the other collection creditor Eul's deposit claims, and Eul deposited the provisional seizure provisional seizure provisional seizure provisional seizure provisional seizure claims, and other collection creditors Eul deposited the provisional seizure provisional seizure provisional seizure claims. The above provisional seizure provisional seizure provisional seizure deposit cannot be deemed as deposit under Article 248 (3) of the Civil Execution Act, since other collection creditors such as Byung did not receive the payment in the distribution procedure for the amount of deposit deposit, Eul cannot claim the extinction of claims against Eul even if other collection creditors such as Byung received the payment in the distribution procedure for the provisional seizure of the amount equivalent to Eul's total amount of the collection claim, but Eul can collect the whole amount of the collection claim ordered by Eul only within the extent of the amount which it could have received if Eul deposited the amount equivalent to Eul's total amount of the collection claim.

[1] Article 248(3) of the Civil Execution Act / [2] Articles 248(3) and 282 of the Civil Execution Act

2. The term "standard Construction Co., Ltd." (former Name: Samman C&C Co., Ltd., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Jong-soo et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2009Na1103 Decided October 16, 2009

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Article 248(3) of the Civil Execution Act provides that “In cases where an order of seizure or provisional seizure has been repeatedly issued in excess of the unclaimed portions among monetary claims, the garnishee served with such order shall deposit the amount equivalent to the total amount of such claims upon request of the garnishee.” In this context, the term “deposits to be deposited” means that it is impossible for the garnishee to obtain immunity unless by the method of deposit. Thus, in cases where the garnishee voluntarily pays to one of the collection creditors or some of the creditors collect debts through compulsory execution procedures, etc., the garnishee cannot assert the extinguishment of the obligation to the creditor who requested deposit and bears the risk of double payment. However, considering that Article 248(3) of the Civil Execution Act does not change the third obligor’s substantive legal status as arising from civil execution procedures, the deposit obligation under the premise that the third obligor would have been entitled to deposit the entire amount of claims to be deposited in excess of the amount expected to have been entitled to be deposited in the creditor’s right to demand distribution, even if the third obligor had voluntarily or partially collected the amount to be deposited in excess of the obligee’s right to demand for distribution.

2. According to the facts acknowledged by the court below, on August 19, 2005, the defendant received 00 won for the above provisional attachment 20. 8,00 won for the non-party 2's claim 1,00 won for the provisional attachment 20,000 won for the non-party 2's claim 97,983,890 won for the non-party 2's claim 1,000 won for the above provisional attachment 20. 7,00 won for the non-party 2's claim 20,000 won for the non-party 7,000 won for the non-party 2's claim 9,000 won for the non-party 2's claim 1,000 won for the provisional attachment 20,000 won for the non-party 2's claim 7,000 won for the above provisional attachment 20,000 won for the non-party 2's claim 1,07,0.

3. According to the above legal principles and the above facts, since the amount of the claim for seizure and provisional seizure of the claim for the construction price of this case at the time when the defendant filed a deposit with the plaintiff on October 13, 2006, exceeds the unpaid construction price claimed by the plaintiff, the plaintiff has a duty to deposit the amount equivalent to the total amount of the claim for the unpaid construction price pursuant to Article 248(3) of the Civil Procedure Act. Nevertheless, on August 13, 2007, the plaintiff did not respond to the defendant's request for deposit, and deposited KRW 72,162,80 with the amount of the deposit for provisional seizure of claims by non-party 1 as of August 13, 2007. Since the above provisional seizure deposit cannot be deemed as the deposit under Article 248(3) of the Civil Execution Act, even if the non-party 1 and the building stones company received payment in the distribution procedure for the above provisional seizure deposit, the plaintiff's claim for distribution cannot be asserted within the scope of the amount of the claim for distribution against the plaintiff.

Nevertheless, the court below made a decision under the premise that the defendant can collect all of the amount ordered to pay in the judgment of this case. In so doing, the court below erred by misapprehending the legal principles on the effect of violation of deposit obligation under Article 248(3) of the Civil Execution Act, which affected the conclusion of the judgment.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)