근질권이 설정된 채권을 다른 채권자가 압류한 경우 발생하는 법적 문제에 관한 고찰- 제3채무자의 후순위 압류채권자에 대한 변제의 효력 및 근질권의 피담보채권 확정시기를 중심으로 -

Abstract

The Supreme Court case(2009da43621) says that, ① when the pledged claim is seized by other creditors who have claim against the pledgor, the third debtor's payment to the garnishment creditor who has lower priority than pledgee is also valid against the pledgee(the first proposition), and ② the credit secured by maximal pledge is fixed when the pledgee knows of such garnishment(the second proposition). But I think that the court's first proposition is not right, and the second proposition needs to be complemented. The Korean Civil Code Article 353 stipulates pledgee's direct collection right against the third debtor as a means of execution to secure pledgee's priority. And such special means for the pledgee should be observed, except when pledgee's priority can be guaranteed. So I think that in principle, the third debtor's payment to the garnishment creditor is invalid against the pledgee, and the pledgee can still assert the direct collection right against the third debtor. But I think when the pledgee's priority can be guaranteed, for example when the third debtor deposited the money and the distribution procedure begins, pledgee can assert his priority by distribution request. Balancing the interests of pledgee and garnishment creditor, it is fair to fix the credit secured by maximal pledge, when the pledgee knows of such garnishment. But I think when the legal cause of the credit secured by maximal pledge was already in existence, the credit that is generated after the time when the pledgee knows of such garnishment, can be secured by maximal pledge. In such case it is desirable to protect the pledgee's reliance about priority, and there is little chance of fraudulent act between pledgee and pledgor.