Whether the substantive law of the attachment and assignment order, made with a person who is not qualified as the executory debtor due to renunciation of inheritance, is valid (negative)

Although an heir indicated in the name of obligation renounces his/her inheritance, an execution creditor is granted an execution clause based on inheritance to the same person and applied for the attachment and assignment order of the same person's claim, and the execution court's order became final and conclusive by issuing the attachment and assignment order, so long as the attachment and assignment order of claim is made with the execution obligor who is not qualified as the execution obligor, the transfer of the entire claim to the execution obligor does not become effective under the substantive law, and this is the same in the case where the execution obligor contests the validity of the execution clause by raising an objection against the grant of the execution clause on the ground of the renunciation of inheritance, etc. by the execution obligor and becomes final and conclusive before its validity is denied.

Articles 31, 229, and 231 of the Civil Execution Act, Article 1019 of the Civil Act

Supreme Court Decision 71Da1252 delivered on June 12, 1973 (No. 21-2, 60) 78Da446 delivered on June 27, 1978 (Gong1978, 1096), Supreme Court Decision 86Da2070 Delivered on May 12, 1987 (Gong1987, 964 delivered on January 28, 1994) (Gong194, 815)

Plaintiff (Attorney Lee Jae-sung, Counsel for the plaintiff-appellant)

Defendant

Intervenor joining the Defendant

Seoul District Court Decision 2002Na3838 delivered on June 12, 2002

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court.

We examine the grounds of appeal.

1. The judgment of the court below

On December 4, 198, the lower court: (a) acknowledged that the Plaintiff’s above-mentioned provisional attachment order of KRW 43 million was leased to Nonparty 1 for a period from December 4, 1998 to KRW 24; (b) determined that the above-mentioned lease contract was terminated on December 3, 200; and (c) determined that the Defendant was obligated to return KRW 43 million to the Plaintiff on the ground that the above-mentioned building was ordered to be returned to Nonparty 2 by the Seoul District Court’s order of KRW 106 to the Plaintiff on the grounds that the above-mentioned provisional attachment order of KRW 30 was issued to Nonparty 2; (d) on the ground that the above-mentioned provisional attachment order of KRW 30 was issued to Nonparty 1, the Plaintiff’s assignment order of KRW 7,00,00,000 for KRW 20,000,000,000 for KRW 7,000,000,000,000.

2. Judgment of the Supreme Court

It is not acceptable that the part concerning KRW 35,431,217 of the Plaintiff’s claim for return of the lease deposit of this case was transferred to the Intervenor joining the Defendant according to the confirmation of the attachment and assignment order of the court below’s decision.

Although a debtor’s heir indicated in the name of his/her obligation renounces his/her inheritance, he/she has been granted an execution clause based on inheritance to the same person and applied for an attachment and assignment order for the same person’s claim, and the execution court issued the attachment and assignment order, so long as the execution obligor’s claim attachment and assignment order was made with a person who is not qualified as the execution obligor and the execution obligor’s execution obligor’s claim attachment and assignment order became final and conclusive, it does not take effect under the substantive law that transfers the entire claim to the execution obligor. This is the same in cases where the execution obligor contests the validity of the execution clause by raising an objection against the grant of execution clause, etc. based on the renunciation of inheritance, and the execution

Nevertheless, the court below deemed that the part of KRW 35,431,217 among the claims to return the lease deposit of this case was transferred to the defendant joining the defendant according to the claims seizure and assignment order, which made the plaintiff who is not qualified as the execution debtor due to the renunciation of inheritance, as the execution debtor. The court below erred in the misapprehension of legal principles as to the validity of the substantive law of compulsory execution executed by a person who is not qualified as the execution debtor as the execution debtor, which affected the conclusion of the judgment. Accordingly, the ground of appeal pointing this out

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)