Provisional Seizure, Seizure and Collection Order in South Korea
Provisional Seizure, Seizure and Collection Order in South Korea
Q: Can a person who became an assignee of a claim after a provisional seizure order against the claim had been served on the garnishee file a suit for performance of the claim against the garnishee?
A: Yes
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 because 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.
Q: Who has the standing to file a suit for performance of the obligation under a seized claim against the garnishee after a seizure and collection order has been issued against a claim?
A: Collection creditor
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.
Reference Provisions
Article 449 of the Civil Code (Assignability, Nature of Claim) (1) A claim may be assigned, except in cases where its nature does not so permit.
(2) Where the parties have declared a contrary intention, a claim shall not be assigned: Provided, that such declaration of intention cannot be set up against a third person acting in good faith.
Article 709 of the Civil Procedure Act (Execution of Provisional Seizure against Movables) (3) For a provisional seizure against claims, an order shall be issued to the garnishee to the effect that he or she shall not make any payment to the debtor.
Article 47 of the Civil Procedure Act (Principles as to Capacity for being a Party and Litigation Capacity, etc.) Unless otherwise prescribed in this Act, the capacity for being a party, the litigation capacity, the granting of authorization required for the legal representation of and for the procedural acts for the persons lacking litigation capacity, shall be governed by the Civil Code and other Acts.
Article 563 of the Civil Procedure Act (Method of Encashment of Monetary Claim) (2) When there exists a collection order, the execution creditor may collect the seized claim without going through the subrogation procedure.
Taejin Kim, partner attorney at K&P Law Firm
Original Source : Click
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