In a case where the original copy of the decision on provisional seizure of claims is not served on the garnishee by negligence of the court of execution, whether it may be deemed that the damage equivalent to the amount of the execution claim which has not taken effect of provisional seizure has been actually inflicted on the creditor of provisional seizure (negative with qualification), and the burden of proof for the occurrence of such

A claim for damages due to a tort shall be established at the time the actual damage occurred, and the issue of whether the actual damage occurred shall be determined objectively and reasonably in light of social norms. Thus, even if the original copy of the decision on provisional seizure of claims is not served on a third party debtor by negligence of the court of execution and thus the provisional seizure takes effect, the creditor of provisional seizure who became aware of such fact may obtain satisfaction of the claim by enforcing compulsory execution against the debtor's other property with the preserved claim. Thus, unless there are special circumstances, such as the court of execution's error above that it is difficult to collect the claim against the debtor due to such error, the creditor of provisional seizure cannot be deemed to have actually suffered the loss equivalent to the amount of the claim which has not come into effect by the reason that the original copy of the decision on provisional seizure of claims

Articles 393, 763 of the Civil Act, Article 2(1) of the State Compensation Act, Article 261 (see current Article 288), and Article 696 (see current Article 276 of the Civil Execution Act) of the former Civil Procedure Act (Amended by Act No. 6626, Jan. 26, 2002);

Supreme Court Decision 92Da29948 delivered on November 27, 1992 (Gong1993Sang, 256), Supreme Court Decision 97Da28568 delivered on April 24, 1998 (Gong1998Sang, 143), Supreme Court Decision 97Da4760 delivered on August 25, 1998 (Gong198Ha, 2308)

Ethical Notes

Korea

Seoul High Court Decision 99Na15148 delivered on August 29, 2000

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

We examine the grounds of appeal.

1. The judgment of the court below

(4) The court below held that the above provisional attachment was 90,00 won on the non-party 1 corporation and the non-party 1 corporation's claim for the above provisional attachment was 90,000 won on the non-party 1 corporation and the non-party 6 corporation's claim for the above provisional attachment was 90,000 won on the non-party 1 corporation and the non-party 6 corporation's claim for the above provisional attachment was 90,000 won. The non-party 1 corporation was 60,000 won on the non-party 9,000 won on the non-party 1 corporation and the non-party 6 corporation's claim for the above provisional attachment was 90,000 won on the non-party 1 corporation and the non-party 1 corporation was 90,000 won on the non-party 1 corporation and the non-party 2 corporation was 90,000 won on the non-party 1 corporation's claim for the above provisional attachment.

2. The judgment of this Court

However, the above judgment of the court below is not acceptable.

A claim for damages arising from a tort is established when actual damage occurred, and whether actual damage occurred shall be determined objectively and reasonably in light of social norms (see, e.g., Supreme Court Decisions 92Da29948, Nov. 27, 1992; 97Da4760, Aug. 25, 1998; 97Da4760, Aug. 25, 1998). Even if the original copy of the provisional attachment decision was not served on a third party debtor due to the negligence of the executing court, and thus provisional attachment takes effect, the creditor of provisional attachment who becomes aware of such fact can obtain satisfaction of the claim by enforcing compulsory execution against other property of the debtor with the preserved claim. Thus, unless there are special circumstances such as the error in the executing court's above that it is difficult to collect claims against the debtor, the creditor of provisional attachment cannot be deemed to have actually suffered substantial damage equivalent to the amount of the claim which has not been served on the third party debtor (see, e., Supreme Court Decision 91Da8951, Oct. 111, 1991).

According to the records, the non-party 1 corporation was established around 20, 199 with non-party 1's annual average sales amount of 00 million won as 00 million won for non-party 1 corporation and 70 billion won for non-party 1 corporation's non-party 9's non-party 1 corporation's non-party 9's non-party 9's non-party 9's non-party 1 corporation's non-party 9's non-party 9's non-party 9's non-party 1 corporation's non-party 9's non-party 9's non-party 1 corporation's non-party 9's non-party 1 corporation's non-party 9's non-party 1 corporation's non-party 9's non-party 1 corporation's non-party 9's non-party 1 corporation's non-party 2's non-party 9's non-party 1 corporation's non-party 9's non-party 9's shares.

In light of the above circumstances, even if the original copy of the decision on provisional seizure of claims was not served on the third party debtor due to the negligence of the court of execution, and thus the provisional seizure takes effect, it cannot be concluded that the damage was actually caused to the plaintiff because it was difficult to collect claims against the non-party 1 corporation due to the circumstance where it is difficult to take the provisional seizure of this case, as long as it is acknowledged that the plaintiff, the debtor, continues to conduct normal business without following the procedure of bankruptcy, etc., and there were many properties other than the claim subject to provisional seizure, and the plaintiff did not take any compulsory execution procedure against the other properties under the name of the non-party 1 corporation even though he knows that the provisional seizure of this case had already taken effect at least before May 197, the provisional seizure of this case was applied to the state around the fact that the plaintiff had not taken any action against the non-party 1 corporation's normal property after acquiring the provisional seizure of this case, and thus, it is difficult to collect the plaintiff's property under the name of the non-party 1 corporation.

Nevertheless, the court below, at least after May 197, which found that the plaintiff had no effect of provisional seizure of this case, found that there was another property under the name of the non-party 1 corporation, whether there was a compulsory execution procedure against other property under the name of the non-party 1 corporation, and other non-party 1 corporation's business activities details, etc., without further examining the details of the non-party 1 corporation's business activities, and found that there was no property other than the non-party 1 corporation's claim for provisional seizure, and then ordered the defendant to compensate for damages, as alleged in the grounds of appeal, the court below erred in the misapprehension of legal principles as to the establishment of liability for damages and the scope of damages due to the violation of the rules of evidence, etc.

3. If so, without examining the remaining grounds of appeal, 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 on the bench.

Justices Seo-sung (Presiding Justice)