Assigned Claim and Provisional Seizure

Supreme Court Decision 99Da23888 delivered on April 11, 2000

1. Summing-up

① The defendant assumed the obligation to pay 99,656,268 won as construction payment to G.

② On January 25, 1997, the defendant was served with a provisional seizure order against claims rendered by Jecheon Branch of Cheongju District Court (Order 97Kahap13) on January 21, 1997 for the claimed amount of 105,920,000 won with Chung Ju-hee as the creditor, 'G' as the debtor and the defendant as the garnishee in relation to the claims for the above-mentioned construction payment before it received a bond transfer notice from 'G'.

③ On February 17, 1997, the defendant was served with a provisional seizure order against claims rendered by the above-mentioned branch (Order 97kahap26) on February 15, 1997 for the claimed amount of 55,736,330 won with Choi Dae-yoon and two others as the creditors, 'G' as the debtor and the defendant as the garnishee.

④ On April 1, 1997, the defendant was served with a provisional seizure order against claims rendered by Western Branch of Seoul District Court (Order 97Kadan2974) delivered on March 31, 1997 for the claimed amount of 40,000,000 won with Lee Kil-won as the creditor, 'G' as the debtor and the defendant as the garnishee. 

⑤ On April 4, 1997, the defendant was served with an amended Judgment rendered by the above-mentioned branch (Order 97Kagi61) on March 31, 1997 in connection with the above-mentioned provisional seizure order against claims (Order 97Kahap26).

⑥ On April 4, 1997, the defendant was served with a seizure and collection order rendered by the above-mentioned branch (Order 97Tagi287, 288) on April 1, 1997 amending the above-mentioned provisional seizure order (Order 97Kahap26) to the order for seizure.

⑦ On April 11, 1997, the defendant received a bond transfer notice from 'G', which was transferred on January 9, 1997.

⑧ The plaintiff claimed the construction payment assigned(71,000,000 won) from 'G' to the defendant.

2. Judgment of the court below

ⓐ The plaintiff, who became an assignee of the claim for 71,000,000 won out of the above-stated claim for construction payment after the defendant was served with each of the above-mentioned provisional seizure orders against claims, could not claim the construction payment assigned from 'G' over the above-mentioned provisional seizure obligees preferentially in the order of priority. 

ⓑ Consequently the plaintiff's claim had no merit.

3. Judgment of the Supreme Court

ⓐ Because the provisional seizure against claims generally prevents only the collection by the provisional seizure obligor from the garnishee, the provisional seizure obligor can file a suit for the performance against the garnishee and the court cannot reject such claim on the ground of the provisional seizure.

ⓑ The assignment of claims refers to a contract to assign the claims from the former creditor, the assignor, to the new creditor, the assignee, while maintaining the identity of the claims.

ⓒ A claim is assigned from the assignor to the assignee without losing its identity; the claims subject to the provisional seizure can be assigned without being subject to any restrictions.

ⓓ Provided, that the assignee of the claims subject to the provisional seizure obtains the claims as restricted in rights by such provisional seizure. 

ⓔ The judgment of the court below was rendered due to a misinterpretation of the law concerning the legal status of the assignee of the provisionally attached or confiscated claims.

ⓕ When there exists a seizure and collection order, the claim for performance against the garnishee can be filed only by the collection creditor and the debtor shall lose its standing to file a claim for performance in connection with the seized claims.

ⓖ There existed the seizure and collection order against claims dated April 1, 1997 changing the provisional seizure order against claims dated February 15, 1997 or the claimed amount of 55,736,330 won with Choi Dae-yoon and two others as the creditors, 'G' as the debtor and the defendant as the garnishee, the part of the suit in this case claiming the above-mentioned confiscated amount is unjustifiable.