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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On May 13, 2013, the Plaintiff applied for a payment order against A as Seoul Eastern District Court 2013 tea26, and issued a payment order as of May 13, 2013 by the above court, and became final and conclusive on June 18, 2013.
B. On February 28, 2017, the Plaintiff received a claim attachment and collection order (hereinafter “instant collection order”) regarding A’s benefit claim as indicated in the attached list against A (hereinafter “instant benefit claim”) by using the debtor as the Defendant, the third obligor as the Seoul Central District Court 2017TTT 102514, and as the Defendant and the amount of claim KRW 59,329,167, pursuant to the above final and conclusive payment order. The said order was served on the Defendant on March 6, 2017.
C. On the other hand, on June 29, 2017, the Plaintiff submitted to the Seoul Central District Court case No. 2017TTT 2017TT 102514, a written waiver of the seizure and the right to collect the instant collection order.
【Reasons for Recognition】 Each entry of Evidence Nos. 1 and 2, a significant fact in this court, and the purport of the whole pleadings
2. We examine the legitimacy of the instant lawsuit ex officio on the lawfulness of the instant lawsuit.
The Plaintiff claimed against the Defendant for the payment of KRW 59,329,167 and delay damages based on the collection order of this case.
On the other hand, when there exists a seizure and collection order as to the claim, only the collection creditor may file a lawsuit for performance against the third debtor. The debtor is disqualified as the party to file a lawsuit for performance against the claim subject to seizure. However, if the collection creditor loses the collection right due to the withdrawal, etc. of the application for the seizure and collection order while the debtor has pending the performance lawsuit, the debtor recovers his qualification as the party to the claim (see, e.g., Supreme Court Decision 2010Da64877, Nov. 25, 2010). According to the facts acknowledged earlier, the plaintiff renounced his right to collect the claim of this case by submitting a written waiver of the seizure and collection right as to the collection order of this case.