집행채권이 압류 또는 가압류된 경우 집행절차의 허용 범위 - 대법원 2022. 9. 29. 선고 2019다278785 판결을 중심으로

According to the Supreme Court’s position, the attachment of an enforcement claim is an obstacle to execution. This is because the court executing the claim cannot make a disposition that would harm the attachment creditor of the claimant in violation of the effect of the attachment. However, the claimant can exercise the enforcement claim within the limits that do not harm the attachment creditor who have attached the enforcement claim. The subject case involves multiple issues regarding how the plaintiff’s attachment of the enforcement claim impacts execution procedures. Specifically, the case concerns the attachment claim by the plaintiff and how the execution obstacle affects execution procedures, following the defendant’s deposit of a release bond after an attachment of the defendant’s real estate by a third-party company. The case presented various issues including: ① the status of the third-party company concerning the release bond deposit; ② the admissibility of the first distribution procedure; and ③ the admissibility of the second distribution procedure. Regarding the status of the third-party company, after the defendant made a release bond deposit following the attachment of the defendant’s real estate by the third-party company, the effect of the attachment extended to the claim for the recovery of the release bond held by the defendant. Thus, the third-party company holds the same status as a creditor who has attached the claim for the recovery of the release bond. The admissibility of the first distribution process is closely related to whether the enforcement claim can be seen to be extinguished by payment following the confirmation of the distribution table. If the enforcement claim is seen to be extinguished by payment, the first distribution process would be seen as contrary to the execution obstacle and therefore inadmissible. If, however, the enforcement claim is seen to be not extinguished by payment, the first distribution process would be permissible. The Supreme Court seems to have decided that the first distribution process is admissible. Even if the execution court grants the third-party company a claim for payment of the distributed amount, it does not imply a real payment because of the obstacle to execution. Therefore, the Supreme Court’s position is deemed reasonable. The admissibility of the second distribution process is closely related to whether the effect of the plaintiff’s attachment extends to the third-party company’s claim for payment of the distributed amount. If the third-party company’s claim for payment of the distributed amount, which arose from the enforcement claim, is considered a secondary right, the effect of the plaintiff’s attachment extends to the third-party company’s claim for payment of the distributed amount (the extension theory). If it is not considered a secondary right, the attachment would not affect it (the non-extension theory). According to the non-extension theory, the second distribution process would be inadmissible due to the execution obstacle. If payment was made according to the second distribution process, the question of whether the defendant could defend against the plaintiff based on such payment arises, leading to conflicting views (theories of defence and non-defence). If the extension theory is adopted, the second distribution process is permissible as it does not harm the plaintiff, who is the attachment creditor of the enforcement claim. The Supreme Court seems to have adopted the extension theory and decided that the second distribution process is admissible. Given that the third-party company’s claim for payment of the distributed amount can be considered a secondary right arising from the enforcement claim, the Supreme Court’s position is reasonable. If the Supreme Court’s position is taken, who is responsible for notifying the execution court of the attachment of the enforcement claim is questionable. Viewing that the defendant should inform the court of the deposit or the first distribution court is reasonable.