[1] Whether the attachment of the contractor's remuneration claim is binding on the obligor or the third obligor's disposal of the contract relationship, which is the cause of the seizure claim (negative), and where the contract is terminated after the seizure, the validity of the seizure order against the remuneration claim arising from the contract (=effective)

[2] Where an assignment order of a contractor's remuneration claim becomes final and conclusive before the contract is terminated, whether the assignment order's effect extends to the claim for construction price arising from a newly concluded contract between the garnishee and the third party after the termination of the contract (negative)

[3] In case where the so-called mixed deposit money has been distributed, whether a person claiming that the deposit money was not paid or repaid despite the existence of the right to receive the payment may file a lawsuit of demurrer against the distribution against the other creditors stated in the distribution schedule (affirmative)

[1] When a seizure of a contractor's remuneration claim is conducted, it cannot be asserted against the obligee even if the obligor disposes of the seized claim, and the third obligor cannot set up against the obligee by such act. However, the seizure cannot be set up against the obligee. However, since there is no binding effect on the obligor on the contract relationship, which is the cause of the seizure claim, or on the disposition of the third obligor, which is the cause of the seizure claim, or on the disposition of the obligor, the obligor or the third obligor is entitled to terminate the contract itself, which is a basic contract relationship, and as long as the contract is the basic contract relationship between the obligor and the third obligor, the claim for remuneration arising out of the contract is extinguished

[2] Even if an assignment order on the remuneration claim of a contractor, which is an attached claim, is issued before the contract is terminated and the assignment order becomes final and conclusive, the assignment order is effective only on the remuneration claim arising before the contract that forms the basis of the attached claim is terminated, and it cannot affect the claim for construction price arising from a newly concluded contract between the garnishee and the third party after the contract is terminated.

[3] In the case of so-called mixed deposits made by mixing the deposit for execution and the deposit for repayment under the Civil Act, and if there is any dispute over the amount to be paid or repaid under the distribution schedule with the creditors, it shall be reasonable to settle the dispute by settling it in a lump sum according to the single procedure, called a lawsuit of demurrer against distribution, and even in this case, a person who asserts that the deposit was not paid or repaid even if he had the right to be paid or repaid, may file a lawsuit of demurrer against distribution against the other creditors stated as being paid or repaid under the distribution schedule.

[1] Articles 543, 664, and 665 of the Civil Act; Article 223 of the Civil Execution Act / [2] Articles 543, 664, and 665 of the Civil Act; Articles 223 and 231 of the Civil Execution Act / [3] Article 487 of the Civil Act; Articles 154(1) and 248 of the Civil Execution Act

[1] Supreme Court Decision 96Da10867 delivered on April 25, 1997 (Gong1997Sang, 1564), Supreme Court Decision 96Da53192 delivered on January 23, 1998 (Gong1998Sang, 583), Supreme Court Decision 99Da51685 delivered on April 11, 200 (Gong2000Sang, 1177), Supreme Court Decision 98Da17930 delivered on June 1, 2001 (Gong201Ha, 1482)

Seoul High Court Decision 200Na1447 delivered on August 1, 200

Defendant 1 and two others (Attorneys Lee Jae-sung et al., Counsel for the defendant-appellee)

Seoul High Court Decision 2001Na57671 delivered on May 7, 2003

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

1. As to the assertion on the reversion of the construction deposit claims

In light of the purport of the judgment below, the court below acknowledged that on June 18, 1999, the Plaintiff entered into an agreement with the Nonparty to succeed to all rights and obligations under the instant construction contract between the non-party’s electrical construction business license and the Korea Electric Power Co., Ltd. (hereinafter “Korea Electric Power Co., Ltd.”), and completed the construction work at its own expense after entering into an agreement with the non-party to change the contractor of the instant construction contract from the non-party to the Plaintiff. The construction payment claim after the succession of the said construction contract was not the Plaintiff’s acquisition of the non-party’s claim, but the Plaintiff had no claim against the non-party prior to the transfer of the contract until the transfer of the contract. Accordingly, the court below determined that the construction payment of this case deposited before Korea was the Plaintiff’s claim independent from the contractor’s position, regardless of the non-party.

Although this part of the judgment of the court below is somewhat insufficient, according to the judgment of the court below, such as the 4th 18 to 5th 11, 64 to 15, 16 to 19th 15, and 15th 16 to 19th 19, etc., it is clear that the court below found the above facts-finding and judgment of the court below and concluded the judgment accordingly (However, the court below decided that the non-party's claim for construction payment was almost little at the time when the assignment order of the defendant 1 and the defendant 2 was delivered, and there was no explicit decision as to the non-party's claim until the time of the contract succession, but the court did not render a decision as to the existence of the non-party's claim until the time of contract succession, and it was concluded that the construction was resumed after the plaintiff's contract succession, it is clear that the court below did not have a claim for construction payment against the non-party's prior to the contract succession.

Since the court below's fact-finding and determination are just, and the ground of appeal disputing this is without merit.

2. As to the assertion of misapprehension of the legal principles as to the attachment and assignment order of future claims

If a contractor’s remuneration claim is seized, it cannot be asserted against the obligee even if the obligor disposes of the claims attached to the contractor’s remuneration claim, and even a third obligor cannot oppose the obligee by such act. However, the attachment is not binding on the obligor in the contract relationship which is the cause of the above seizure claim or the disposition of the third obligor. Thus, the obligor or the third obligor can terminate the contract itself, which is the basic contract relationship. If the contract is terminated as the basic contract relationship between the obligor and the third obligor, the claim for remuneration arising out of the contract is extinguished, so the seizure order aimed at this becomes void (see Supreme Court Decisions 96Da10867 delivered on April 25, 1997, 96Da53192 delivered on January 23, 198, 99Da51685 delivered on April 111, 200, and even if the assignment order becomes final and conclusive prior to the termination of the contract agreement between the obligor and the third obligor’s new assignment order.

According to the facts duly admitted by the court below, the Defendants issued a provisional attachment or execution of the non-party’s remuneration claim based on the original contract between the non-party and the non-party, and further, Defendant 2 and Defendant 1 issued an assignment order, but the assignment order became final and conclusive upon the non-party’s transfer order. Since the non-party’s shortage in funds, the non-party and the plaintiff entered into an agreement to succeed to all rights and obligations under the non-party’s electrical construction business license and this case’s contract, and the plaintiff entered into a new contract between the non-party and the non-party, although the contents of this case’s contract are the same as that of the non-party’s electrical construction business license and the non-party’s new contract was entered into between the non-party and the non-party, but the plaintiff’s independent claim for the construction payment was established upon the completion of the construction work at its own expense and the seizure of the former contractor’s original contract and the non-party’s new claim for construction payment was not established under the aforementioned contract’s new contract termination order, regardless of the non-party’s new contract.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the order of seizure and assignment of future claims. The ground of appeal on this part is not accepted as there is no ground for appeal.

3. As to the assertion of misapprehension of legal principles as to standing to sue of a lawsuit of demurrer against distribution

A lawsuit of demurrer against distribution is seeking the alteration of a distribution schedule or the preparation of a new distribution schedule in order to reduce the amount of dividends of a person entered in the distribution schedule to be distributed to him/her. Here, the distribution means not only the procedure under the enforcement law that reimburses the creditors demanding distribution in accordance with the order of priority provided for in the Civil Act and the Commercial Act and other Acts in the case of a so-called mixed deposit made by mixing the deposit for execution with the deposit for payment under the Civil Act and the deposit for payment under the said distribution schedule, and if there is a dispute over the amount with the creditors, it is reasonable to settle the dispute by once by the single procedure, which means a lawsuit of demurrer against distribution, and even in this case, a person who asserts that the payment or repayment was not made despite the rights to receive the payment or the repayment in the deposit, may bring a lawsuit of demurrer against the other creditors indicated in the distribution schedule.

In this case, the plaintiff is dissatisfied with the purport that it is improper to distribute the construction cost of this case to the defendants, who are creditors of the non-party, on the premise that it belongs to the non-party, even though the construction cost of this case deposited belongs to himself, and in light of the above legal principles, the plaintiff is qualified

The grounds of appeal asserted that the construction cost of this case belongs to the non-party and that the plaintiff did not have standing to sue in a lawsuit of demurrer against distribution against the plaintiff on the premise that the plaintiff was a transferee of the non-party's claim for construction cost of this case. However, as seen above, the construction cost of this case belongs to the plaintiff, and the plaintiff filed the lawsuit of this case as a creditor entitled to repayment under the above premise. Thus, the argument in the grounds

Although this part of the judgment of the court below is somewhat insufficient, it is just to determine that the plaintiff has standing to sue of a lawsuit of demurrer against distribution, and there is no misapprehension of legal principles that affected the conclusion of the judgment.

4. As to the assertion that there is an error in the misapprehension of legal principles as to the validity and termination of a contract and executive titles for a third party

This part of the allegation is a deposit for the repayment of the construction payment claim against the construction work performed by the said Nonparty, and is based on the premise that the original obligee is the Nonparty. However, as seen above, the contract was terminated between the Nonparty and the Nonparty, who served as the basis for the occurrence of the claim attached after the execution of the attachment of the claim by the Defendants, and as long as the deposit money of this case is the remuneration for the part for which the Plaintiff entered into a new contract with the Korea War and performed its obligation, it is erroneous on the premise thereof.

The lower court also rendered a judgment on the Plaintiff’s assertion that the deposited money of this case was the Plaintiff’s claim for construction cost and that the Defendants did not have the right to receive dividends from the deposited money (Article 15-16-19 of the lower judgment). On the premise that the deposited money of this case is the Nonparty’s claim for remuneration, the lower court also rendered a judgment on the Plaintiff’s assertion that the entire amount of the deposited money and the collected money were extinguished due to waiver of the Nonparty’s claim for remuneration. However, insofar as the deposited money is deemed the Plaintiff’

Therefore, this part of the ground of appeal cannot be accepted as it is without merit.

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)