[1] The validity of provisional attachment execution following the withdrawal of an application for provisional attachment against a claim (i.e., when a notice of withdrawal is served to a third party obligor), and whether the same applies to cases where the third party obligor becomes aware of the fact of withdrawal before being served with the notice of withdrawal (affirmative)

[2] Whether an assignment order, which was issued in the condition of seizure competition, and null and void, is returned if it goes beyond the concurrent state due to the cancellation of execution of provisional seizure against the preceding claim (negative)

[1] Articles 227(3) and 291 of the Civil Execution Act, Articles 160(1) and 213(2) of the Civil Execution Rule / [2] Articles 227(3), 229(5), and 291 of the Civil Execution Act, Articles 160(1) and 213(2) of the Civil Execution Rule

[1] [2] Supreme Court Decision 2000Da19373 decided Oct. 12, 2001 (Gong2001Ha, 2446)

Plaintiff (Attorney Lee Tae-hwan, Counsel for the plaintiff-appellant)

Korea

Jeong-gu

Busan District Court Decision 2006Na19792 Decided September 21, 2007

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

If a creditor withdraws an application for provisional seizure against a claim, the decision of provisional seizure against a claim shall become effective. However, if the original copy of the decision of provisional seizure against a claim has already been served on a third debtor and the provisional seizure order has been executed, the provisional seizure execution against the third debtor shall become effective only when the notice of withdrawal has been served on the third debtor (see Supreme Court Decision 2000Da19373, Oct. 12, 2001). This legal principle applies to cases where the third debtor becomes aware of the withdrawal of the application for provisional seizure before the notice of withdrawal is served on the third debtor by other means than the notification by the court administrative officer, etc. The provisional seizure against a claim shall become effective only when the third debtor becomes aware of the withdrawal of the application for provisional seizure against the third debtor (Articles 291 and 227(3) of the Civil Execution Act). If an application for provisional seizure order is withdrawn, the junior administrative officer, etc. shall notify the third debtor of such fact (Article 213(2) and 160(1) of the Rules).

In this regard, the court below is just in holding that the assignment order of this case by the plaintiff falls under the case where the notice of withdrawal of the application for provisional seizure was served on the garnishee and the attachment was issued in competition before the effect of execution of provisional seizure was extinguished, and thus, the assignment order which has been invalidated once is exempted from the concurrent status of seizure due to the cancellation of execution of provisional seizure of claim thereafter, and there is no error in the misapprehension of legal principles as to the validity of execution of provisional seizure, as alleged in the ground of appeal No. 1.

In addition, the reasoning of the judgment below is examined in detail in light of the records, and there is no error of omission of judgment as to the dividend amount of the Defendants, or failure to exhaust all necessary deliberations due to lack of right to ask for explanation, as alleged in the ground of appeal No. 2.

Therefore, all appeals are dismissed, and the 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 Kim Hwang-sik (Presiding Justice)