In case where the execution claim in the course of the procedure for a seizure and assignment order has been seized or provisionally seized, whether the cancellation of the seizure and assignment order is revoked

In case where an executory bond is seized or provisionally seized by another person, the executory creditor is prohibited from receiving the repayment of the execution bond from the executory debtor. Thus, in such a situation, it cannot commence compulsory execution, and in case where the same cause occurs after the compulsory execution already commenced, it is reasonable to cancel only an assignment order within the necessary scope to avoid the risk of double payment, and there is no need to cancel even the seizure procedure, which is the primary stage of compulsory execution.

Articles 561(1) and 709(3) of the Civil Procedure Act

Song-ho (Attorney Heung-hun et al., Counsel for the plaintiff-appellant)

Seoul District Court Order 94Ma3836, 3837 dated August 25, 1994

1. The part concerning an assignment order among the decision of the Committee shall be revoked;

2. The application for an assignment order of the rate metal Co., Ltd. other than the obligee’s appeal is dismissed;

3. The appellant's remaining appeal shall be dismissed;

1. According to the records of this case, on August 24, 1994, the appellant filed an appeal against the above case on August 25, 1994, on the basis of an executory exemplification of the judgment of the court below 92 Gohap13855 against the appellant on August 24, 1994 on the claim for the payment of goods (hereinafter this case) with the court below 92 Gohap13855 against the appellant, and the appellant filed an order for the seizure and assignment of the claim for the refund of deposit amount of KRW 200,000,000 with the Seoul District Court 93Ra400, and the court below issued an order for the seizure and assignment of the entire claim of this case on August 25, 1994. The appellant filed an appeal against the above case (the appellant dismissed the appeal even if it filed the appeal above, but the appellant dismissed the appeal by the Seoul High Court 94Kao507, Sept. 10, 1994 and the amount of this appeal shall be dismissed by 196.36.

2. The appellant asserts that the execution bond of this case against the appellant of the above rate metal was provisionally seized by another person after the assignment order of this case, and that the seizure and assignment order of this case by the court of original judgment should be revoked as the reasons for the appeal of this case.

Therefore, according to the records of the Health Unit, it can be recognized that the non-appealed Dasan Industries Co., Ltd., on July 12, 1995, received a provisional seizure order against the total amount of claims against the appellant in accordance with the above judgment of the Seoul District Court on July 12, 1995 and delivered the above decision to the appellant who is the garnishee on July 28, 1995, on the ground that there was a preserved claim amount of KRW 280,273,582 against the above Dasan Metal. The execution creditor cannot commence compulsory execution in such state, since the execution creditor is prohibited from receiving the repayment of the above claims from the execution debtor, if the above reasons have occurred after the compulsory execution had already commenced as in this case, the debtor (the garnishee in the above provisional seizure case) is within the necessary scope in order to avoid the risk of double payment, and the provisional execution procedure should not be revoked to the extent that it is not necessary to revoke the above assignment order.

3. If so, the part of the order of the court below that accepted the application for an assignment order of the above rate metal is unfair as a result, so this part of the appeal by the appellant seeking its revocation is revoked as it is reasonable, and the appeal by the appellant as to the seizure order is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jong-dae (Presiding Judge)