New Card Corporation

Defendant

January 18, 2013

Seoul Central District Court Decision 2012Gadan120342 Decided September 6, 2012

1. Revocation of a judgment of the first instance;

2. The Defendant’s compulsory execution against the Plaintiff on April 9, 2012 against the Seoul Central District Court Decision 2012Da400325 is denied based on the decision on performance recommendation.

3.To suspend the compulsory execution by the decision on performance recommendation as referred to in paragraph (2) until this decision becomes final and conclusive;

4. All costs of the lawsuit shall be borne by the defendant.

5. Paragraph 3 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. On November 10, 201, the Defendant received a decision to receive insurance benefits from the Korea Workers’ Compensation and Welfare Service to receive a lump-sum disability payment of KRW 28,316,040 on June 23, 201, while working in Green Co., Ltd., and received the said money from the Defendant’s bank (hereinafter “Korea Bank”) as a deposit account (Account Number omitted) with the Defendant’s bank on the same day (hereinafter “instant deposit account”).

B. On June 20, 2011, the Plaintiff filed a seizure and collection order against the Defendant’s deposit claims against the Defendant’s Bank, etc. on June 21, 201 by requesting the Suwon District Court to issue a seizure and collection order of the claim against the Defendant’s deposit claims. On June 21, 201, the Plaintiff received a seizure and collection order of the said claim (hereinafter “the seizure and collection order of this case”). The original copy of the seizure and collection order of the said claim was served on the Bank on June 30, 201.

C. On July 21, 2011, the Plaintiff collected KRW 14,510,446 deposited in the Defendant’s account from the bank, the garnishee, based on the instant seizure and collection order, from the Defendant’s bank. On July 28, 201, the Plaintiff filed a report on the collection of the said money with the Suwon District Court Pyeongtaek Branch on July 28, 201. The said KRW 14,510,46 collected by the Plaintiff was the amount remaining after the Defendant used as living expenses (gas charges, food, shopping payments, etc.) from the disability lump sum deposited in the instant deposit account.

D. On September 8, 2011, the Defendant filed an application for alteration of the scope of the claim to be prohibited from seizure on the ground that the lump-sum disability payment deposited in the instant deposit account at Suwon District Court (201.662) constituted the claim to be prohibited from seizure under Article 246(1)7 of the Civil Execution Act (insurance money received by the debtor on the ground of life, injury, disease, accident, etc.). On September 26, 2011, the lower court decided to revoke the part of the claim to deposit in the instant deposit account of KRW 14,510,446, which was deposited in the instant deposit account among the seizure and collection order of this case, and the said revocation ruling was served on the Bank on October 4, 2011.

E. On March 23, 2012, the Defendant filed a lawsuit against the Plaintiff for the return of unjust enrichment with the purport that “the Plaintiff obtained benefits equivalent to the said money and thereby incurred damages equivalent to the amount to the Defendant” (Seoul Central District Court Decision 2012Da400325) that “the Plaintiff would pay to the Defendant the amount of KRW 14,510,446 and delay damages incurred therefrom,” and the said court, on April 9, 2012, issued a recommendation of performance (hereinafter referred to as “instant recommendation decision”) with the purport that “the Plaintiff would recommend the implementation of the said claim against the Plaintiff,” and the said decision of performance recommendation became final and conclusive on April 27, 2012 on the ground that the Plaintiff did not raise any objection after receiving the original copy of the said decision of performance recommendation.

[Ground of Recognition] Facts without dispute, Gap evidence 1, Eul evidence 2, Eul evidence 3, Eul evidence 1-1 through 3, Eul evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 5-1, 2, Eul evidence 6-1 through 3, the purport of the whole pleadings, and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

Even if a disability lump sum payment received by the Defendant constitutes a claim to prohibit seizure under the Civil Execution Act, since the above disability lump sum payment was deposited in the account in this case under the name of the Defendant, and even if the Defendant received a decision to change the scope of claims to prohibit seizure against the seizure and collection order of this case, the decision to modify the scope of claims to prohibit seizure cannot be retroactively effective, and it cannot be said that there is no legal ground for 14,510,46 won that the Plaintiff lawfully collected in accordance with the seizure and collection order of this case, and therefore, the Plaintiff has no obligation to return the above amount to the Defendant as unjust enrichment. Therefore, compulsory execution based on the execution recommendation decision of this case should be denied.

2) The defendant's assertion

A lump-sum disability payment deposited in the instant deposit account constitutes a claim to be prohibited from seizure under the Civil Execution Act. On September 26, 201, the Defendant received a decision to revoke the part concerning the deposit claim against KRW 14,510,446, which was deposited in the instant deposit account among the instant seizure and collection order. Since the aforementioned revocation order becomes retroactively effective, the Plaintiff’s collection of KRW 14,510,446, based on the instant seizure and collection order does not have any legal grounds. Thus, the Plaintiff is obligated to return the above amount to the Defendant for unjust enrichment.

B. Determination

1) Whether the deposit claim against the instant account constitutes prohibited claim

If the object of the claim to be prohibited from seizure is deposited into the debtor's deposit account, the deposit claim is no longer effective against the debtor's deposit claim, and such deposit does not constitute the claim to be prohibited from seizure (see Supreme Court Order 99Ma4857 delivered on October 6, 199, etc.). On June 23, 2011, the defendant received insurance benefits to be paid 28,316,040 won a lump sum disability payment from the Korea Workers' Compensation and Welfare Corporation, and on the same day, received the above money from the defendant's bank to the defendant's deposit account in this case against the defendant's bank on the same day as recognized on January 1, 201. Thus, even if the defendant's lump sum disability payment to be paid by the Korea Workers' Compensation and Welfare Corporation is deposited into the defendant's deposit account corresponding to the debtor's claim to be prohibited

2) Whether the revocation decision of the seizure and collection order of the instant case affects the Plaintiff’s collection act conducted in king

Article 160(1) of the Civil Execution Rule provides that when a ruling to cancel an attachment order becomes final and conclusive, the third obligor shall be notified, and when the third obligor is notified of the ruling to cancel the attachment order, the attachment order becomes void in the future from the time when such notification is served to the third obligor (see Article 160(1) of the Civil Execution Act (Ⅳ).

In this case, on June 21, 201, the plaintiff was issued a seizure and collection order of this case against the defendant's deposit claims against the above defendant's bank on June 21, 201. On June 30, 201, the plaintiff was served on the third debtor bank on June 21, 201. On July 21, 201, 14,51,46 won deposited from the defendant's bank on July 28, 201, and the collection order of the above 14 was revoked on July 26, 201. The defendant was not subject to the seizure order of the above 14,510,46, which was issued on September 26, 201, on the condition that "the above 4th, the above 14,510,46 won was not subject to the seizure order of the above 4th, and the above 16th,000 won was not subject to the seizure order of the defendant's deposit claims."

3) Sub-determination

Therefore, the plaintiff cannot be deemed to have a duty to return the above collection amount to the defendant as unjust enrichment. Therefore, the compulsory execution based on the decision of performance recommendation of this case shall be dismissed.

3. Conclusion

The plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so it is revoked, and it is not possible to enforce compulsory execution based on the decision of execution recommendation of this case, and it is decided as ordered by the order to suspend compulsory execution based on the decision of execution recommendation of this case ex officio pursuant to Article 47 (1) of the Civil Execution Act until the judgment of this case becomes final

Judges Choi Jong-su (Presiding Judge)