In case where there exists a seizure and collection order against a monetary claim, whether the collection obligor may exercise the defense right to seek simultaneous performance against the garnishee by resorting to the seized claim (affirmative)

In case where there exists a seizure and collection order against a monetary claim, this only accords the collection obligee with the right to collect the monetary claim against the third obligor in the course of compulsory execution, so this does not transfer or belong to the collection obligee, and thus, the collection obligor does not lose the defense right to seek simultaneous performance against the third obligor based on the seized claim.

Article 536 of the Civil Act, Article 563 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant

Incheon District Court Decision 2000Na8731 delivered on November 24, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. According to the reasoning of the judgment below, the court below dismissed the plaintiff's claim for this part of this case since the defendant occupied the real estate of this case only until August 31 of the same year after the lease contract of this case was terminated on March 29, 199, and it did not use it as a beauty room even though the defendant neglected his household appliances, etc., but did not use it as a beauty room for the purpose of the above lease contract. In light of the records, the court below dismissed the plaintiff's claim for this part of this case since the defendant did not have any unjust enrichment for the period after September 1999. In light of the records, the above fact-finding and decision of the court below are justified, and there is no violation of the rules of evidence or misapprehension of legal principles as alleged in the grounds for appeal.

2. Even if there is a seizure and collection order against a monetary claim, it is merely a third-party debtor who is obligated to collect claims against a third-party debtor in the compulsory execution procedure. It does not transfer or revert to the collection creditor of the claim against the third-party debtor (see Supreme Court Decisions 96Da54300, Mar. 14, 197; 88Da3465, Dec. 13, 198). Thus, the collection debtor does not lose the right of defense against the third-party debtor to seek simultaneous performance based on the seized claim, and the third-party debtor who is obligated to simultaneously perform the above collection order is subject to restrictions on the validity of the above seizure collection order, and the court below's determination that the remaining security deposit to be returned by the plaintiff was not subject to the above 16 million won lease deposit, and the court below's determination of the court below's determination that the repayment of the real estate in the name of the third-party debtor and the above 16 million won was not subject to the above examination.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)