Summary
The finality of an assignment order and the rule that it has no effect in the event of competing attachments must be considered together with its effect of transferring the claim.
4.1The Standard by Which the Path Opens
The strong effect of transfer carries with it conditions under which that effect does not arise. A collection order confers the authority to collect without a subrogation procedure and is distinct from the fact of actual payment. Carrying forward the observation of the preceding section, the question at this stage is whether an assignment order always transfers the claim. Creditor A attached Debtor B's deposit, but Financial Institution C raises issues of concurrence and the protected portion of the deposit. In this scene, the relationship between the strong effect of transfer and the conditions under which that effect does not arise must first be weighed.
The relevant statutory text states the basic effect of an assignment order as follows: "An attached claim is transferred to the attaching creditor in lieu of payment" (Article 229 of the Civil Execution Act). Here the subject of the transfer is the attaching creditor, the object of the transfer is the attached claim, and "in lieu of payment" is the mode of transfer. What this wording speaks of is only the form of the effect of transfer; it does not encompass the fact that the creditor has actually received the money.
The statute separately provides, in the same Article, the conditions under which that transfer effect arises: "An assignment order shall have effect only when it becomes final" (Article 229, paragraph (7) of the Civil Execution Act). The requirement of finality and the transfer effect spoken of in paragraph (3) must be viewed as distinct. Finality is a preceding condition on which the effect of transfer depends, and does not itself mean receipt of money. This is why the requirement of finality and the transfer effect are placed side by side within the same Article.
In a situation of concurrence, one step further, a rule of nullity operates: "An assignment order shall have no effect" (Article 229 of the Civil Execution Act). A creditor may learn of the existence of concurrence late, and in the meantime a loss may arise in which the recovery of a small claim becomes practically difficult. Yet an assignment order that is not final or that stands in a statutory concurrence cannot be established as a valid transfer. Even taking into account the late awareness, the limitations of finality and concurrence apply squarely to the transfer effect.
In this scene, what Financial Institution C raises is the existence of concurrence and the protected portion of the deposit. These facts touch upon the condition that the finality of the assignment order and the rule of nullity upon concurrence must be viewed together with the effect of transfer of the claim. However, in this scene the time of service, whether the concurrence has been established, and whether actual payment has been made are all undetermined. Accordingly, all that can be stated here is the distinction that the assertion of transfer is possible only when those conditions are satisfied; it is not a further determination of facts.
An assignment order is an order that transfers the attached claim in lieu of payment. From this definition alone, one cannot say that an assignment order always transfers the claim. An assignment order that has not become final, or that has lost its effect through concurrence, cannot bring about a transfer; only in a case that has passed through the limitations of finality and concurrence can its effect be spoken of.
4.2The Conditions That Block Relief
That conclusion was that a collection order merely confers the authority to collect without a subrogation procedure and is distinct from the fact of actual payment. Now, going one step further from the question of whether an assignment order always transfers the claim, the question becomes what conditions block the remedy.
The statutory provisions corresponding to this question are three paragraphs of Article 229 of the Civil Execution Act. First, paragraph (3) declares that "An attached claim is transferred to the attaching creditor in lieu of payment" (Article 229 of the Civil Execution Act). Here the subject of the transfer is the attaching creditor, the object is the attached claim, and "in lieu of payment" means that, instead of actual payment by the third-party debtor, the claim itself passes over. Paragraph (7) of the same Article provides that "An assignment order shall have effect only when it becomes final" (Article 229 of the Civil Execution Act), thereby setting a separate condition for the above transfer effect to arise.
The declaration of transfer in paragraph (3) and the condition of finality in paragraph (7) are not the same stage of judgment. An assignment order is an order that transfers the attached claim in lieu of payment, but that order does not immediately take its place as a valid transfer. Until the requirement of finality is satisfied, even though the effect of transfer has been declared, its efficacy remains in a state that has not been established as final. Paragraph (5) of the same Article conversely provides that "An assignment order shall have no effect" (Article 229 of the Civil Execution Act), specifying the case where, before it is served on the third-party debtor, another creditor has made an attachment, provisional attachment, or demand for distribution. Where there is only an attachment and the statutory conditions for collection or assignment, or actual payment, are absent, or where the relevant conversion into cash is restricted by non-attachability and concurrence, if even one of the statutory requirements is not met, the channel of relief is closed.
The strongest counterargument is aimed at the point that a creditor may learn of the existence of concurrence late. The loss that debtor protection and concurrence proceedings may render the recovery of small claims practically meaningless, and the inconvenience suffered by small-claim creditors who cannot grasp complex concurrence materials in time, are not erased. Even so, an assignment order that is not final or that stands in a statutory concurrence cannot be established as a valid transfer. The circumstance of late awareness cannot serve as a ground for relaxing the requirements; rather, it adds reason to verify whether that order has reached a transfer.
In the synthetic scene, Financial Institution C raises issues of concurrence and the protected portion of the deposit. This is a fact showing that the restrictions of the grounds of concurrence under paragraph (5) and the scope of non-attachability and protection may bar the actual conversion into cash. However, the scene sets no year, amount, or accrual date, and no materials on service, finality, or payment have been presented. If a statutory concurrence is confirmed at the time the assignment order is served, the conclusion of a valid transfer of the claim changes. Where necessary facts among the existence of the claim, the scope of protection, and actual payment are not confirmed, success or failure cannot be determined.
Accordingly, one cannot assert that an assignment order always transfers the claim. Only when the requirement of finality is satisfied and the concurrence limitation of paragraph (5) is not triggered does the transfer in lieu of payment under paragraph (3) take valid effect. Where there is only an attachment and the statutory conditions or actual payment are absent, or where conversion into cash is restricted by non-attachability or concurrence, that channel is closed. What remains is the question of another path, not that transfer.
4.3The Boundary That Remains When There Is No Data
Does an assignment order always transfer the claim? The preceding section held that where there is only an attachment and the statutory conditions for collection or assignment, or actual payment, are absent, or where the relevant conversion into cash is restricted by non-attachability or concurrence, this remedy is blocked. The question that now remains, then, is the boundary of insufficient materials, which is to be distinguished from that blockage. In this scene, the state of judgment when the necessary facts are not supplied must be fixed.
The text corresponding to this question is divided into three paragraphs. Article 229 of the Civil Execution Act first provides: "③ Where there is an assignment order, the attached claim shall be transferred to the attaching creditor in lieu of payment." Here the subject of the transfer is the attaching creditor, the object is the attached monetary claim, and the act-effect of transfer in lieu of payment is bound to the condition of the assignment order. This paragraph merely indicates what the definitional effect of an assignment order is; it does not say whether that effect has actually become final.
Accordingly, an assignment order is an order that transfers the attached claim in lieu of payment, but to say that that transfer has been validly established one must view together the rules of finality and concurrence. Article 229 of the Civil Execution Act provides "⑦ An assignment order shall have effect only when it becomes final," and further provides "⑤ Where, before an assignment order is served on the third-party debtor, another creditor has made an attachment, provisional attachment, or demand for distribution with respect to the monetary claim, the assignment order shall have no effect." These two stages are different thresholds. One asks whether the order has become final; the other asks whether there is concurrence at the time of service. A judgment seeking to verify the transfer effect cannot be hurriedly fixed without verifying either of them.
The strongest counterargument starts from the point that a creditor may learn of the existence of concurrence late. A creditor holding a small claim can hardly grasp in advance all the circumstances on Financial Institution C's side, and the disadvantage that concurrence proceedings or the protected portion of the deposit may render recovery practically meaningless is not light. Even without denying that loss, the judgment divides in two. Where judgment is impossible for want of materials, it remains undetermined; where there is an absence of statutory conditions, or where the relevant conversion into cash is restricted by non-attachability or concurrence, it is classified as a case in which the remedy of the preceding section is blocked. Either way, an assignment order that is not final or that stands in a statutory concurrence cannot be established as a valid transfer.
The facts confirmed in the synthetic scene extend only to the attachment and Financial Institution C's raising of issues of concurrence and the scope of protection. Whether, at the time the assignment order was served, another creditor had made an attachment, provisional attachment, or demand for distribution; whether that order became final; to what extent the protected portion of B's deposit extends; and whether actual payment was made — none of these is determined in this scene. Accordingly, this scene cannot determine the validity of the transfer, and marks only the boundary that where the necessary facts are not confirmed the judgment must remain undetermined. If a statutory concurrence is confirmed at the time the assignment order is served, it remains a ground for changing the conclusion that that order is a valid transfer of the claim.
The conclusion of this section is narrow. Where necessary facts among the existence of the claim, the scope of protection, and actual payment are not confirmed, the judgment remains undetermined, and this is distinguished from a case in which the remedy is blocked. This section permits neither converting insufficient materials directly into a want of remedy, nor elevating an assignment order in an undetermined state to a completed transfer. Conversely, it means that the transfer effect can be spoken of only when both conditions of finality and concurrence have been confirmed; it is not an assertion that such confirmation has itself been made.
4.4The Records Needed for Determination
To answer that question, what records remain, rather than what actually happened, becomes the criterion. For only once it is determined what materials are to judge the stage can it be distinguished whether this is a transfer that has become final or a procedure still open.
The wording that sets out the transfer effect of an assignment order is as follows. Article 229, paragraph (3) of the Civil Execution Act provides that "an attached claim shall be transferred to the attaching creditor in lieu of payment." Here the subject is the attaching creditor, the object is the attached claim, and the act is a transfer in lieu of payment. "In lieu of payment" means that, instead of the third-party debtor, Financial Institution C, paying money to Debtor B, the claim itself passes to A. This paragraph alone, however, does not determine the point at which the transfer is established, or the relationship with other creditors.
To connect this wording with the conclusion of this section, the transfer effect and the conditions of that effect must be viewed together. Article 229, paragraph (7) of the Civil Execution Act provides that "an assignment order shall have effect only when it becomes final," and paragraph (5) of the same Article provides that it has no effect if there is concurrence before service. Thus whether it has become final and whether there is concurrence do not operate apart from the transfer effect; they become the stage-determining elements that decide whether a transfer has been established. And that determination is made solely on the basis of materials recorded in service on the third-party debtor, collection, or the assignment order, materials on finality and concurrence, deposit (payment into court), or receipt of payment. Records that do not exist are not filled in by presumption.
The strongest counterargument is aimed at the problems of delay and information. A creditor may learn of the existence of concurrence late, and it may be difficult to ascertain when another creditor's attachment, provisional attachment, or demand for distribution came in. Moreover, it is also to a creditor's disadvantage that debtor protection and concurrence proceedings may render the recovery of small claims practically meaningless. Yet even if this inconvenience remains, an assignment order that is not final or that stands in a statutory concurrence cannot be established as a valid transfer. The circumstance of having learned late does not change whether records remain, and accordingly the conclusion that the transfer is difficult to establish is not shaken.
Taking only the facts corresponding to this question in the synthetic scene: Creditor A attached Debtor B's deposit, but Financial Institution C raises issues of concurrence and the protected portion of the deposit. Here, if concurrence materials remain and those materials indicate concurrence before service, then under Article 229, paragraph (5) of the Civil Execution Act, that assignment order has no effect. If a statutory concurrence is confirmed at the time the assignment order is served, it changes the conclusion that that order is a valid transfer of the claim. However, this scene sets no year, amount, or accrual date, and there are no actual records of service, finality, or payment, so the scope of the protected portion of the deposit and whether payment was actually received cannot be determined from this scene alone.
The conclusion permitted in this section is that the stages of transition from attachment to collection, assignment, and receipt are judged solely by the materials remaining in the fixed records. Conversely, the conclusion not permitted is, on the ground of unverified status or late awareness, presuming records that do not exist to establish a transfer of the claim; or treating an assignment order as always a valid transfer without confirming the state of finality and concurrence.
4.5Circumstances That Change the Decision
In such a scene, one must examine whether an assignment order always transfers the claim, and what change overturns an existing determination. The conclusion reached in the preceding section—that a collection order confers the authority to collect without a subrogation procedure and is distinct from the fact of actual payment—serves merely as the background for weighing, at this stage, the transfer effect of the assignment order itself and the conditions for its defect. One now confirms why the rule that an assignment order has effect only upon finalization and the rule of no effect upon concurrence must be viewed together with the claim-transfer effect.
An assignment order means an order that transfers the attached claim in lieu of payment. Accepting this definition, Article 229 (3) of the Civil Execution Act declares, "Where an assignment order is issued, the attached claim is transferred to the attaching creditor in lieu of payment" (Civil Execution Act, Article 229). The subject of this text is the attaching creditor; the object transferred is the attached monetary claim; and the mode of transfer is in lieu of payment. The transfer spoken of here does not mean recovery of the claim, but refers to a change in legal position whereby the attaching creditor acquires rights against the third debtor.
However, since another paragraph of the same Article sets conditions attaching to this transfer effect, one cannot assert from the text of paragraph (3) alone that the transfer effect always arises. Article 229 (7) of the Civil Execution Act provides, "An assignment order has effect only when it becomes final and conclusive" (Civil Execution Act, Article 229), tying the life and death of the transfer effect to finalization. Accordingly, the occurrence of the transfer effect is not completed by the single event of issuance of the order; it is consummated only after passing through the separate stage of finalization. Furthermore, Article 229 (5) of the Civil Execution Act provides, "Where, until the assignment order is served on the third debtor, another creditor has made an attachment, provisional attachment, or demand for distribution with respect to the monetary claim, the assignment order has no effect" (Civil Execution Act, Article 229). In other words, the invalidity before finalization and the invalidity upon concurrence are two distinct provisos; if either is confirmed, the conclusion of a valid claim transfer by the assignment order does not hold. The reason this distinction matters is that the validity of the assignment order itself and the effectiveness of the monetization caused by that order belong to different stages of determination.
How, then, is one to deal with the counterargument that a creditor may learn of the concurrence only belatedly? This counterargument is aimed at actual loss. Debtor protection and the concurrence procedure may render recovery of small claims virtually meaningless, and a creditor may be late in ascertaining whether concurrence arose on the side of financial institution C. Yet the inconvenience the counterargument points to is not a confirmed fact. Even if that inconvenience is acknowledged, an assignment order in a state of non-finalization or statutory concurrence cannot be confirmed as a valid transfer. That is because the conditions of invalidity prescribed by paragraphs (5) and (7) determine the effect of the order irrespective of when the creditor learned of it. When the creditor learned of it bears on the convenience of the recovery procedure; whether the transfer effect of the assignment order arises is a separate matter of statutory determination.
This distinction becomes clear when contrasted with the facts in the synthetic scene. In this scene, whether concurrence existed until the assignment order was served on the third debtor has not been confirmed. Nor has the scope of the protected portion of the deposit been fixed, and whether the assignment order became final and conclusive does not appear in the records. Hence this scene is not sufficient to determine whether the claim-transfer effect of the assignment order arose, or whether it became void due to statutory concurrence. Unconfirmed items cannot be filled in by conjecture. Only, in accordance with the statutory text confirmed above, if statutory concurrence is confirmed at the time the assignment order is served, the conclusion of a valid claim transfer changes; and the rule that, once that change is confirmed, the existing blocking and effectiveness determinations must be discarded and the determination redone from the beginning remains unchanged.
Accordingly, the conclusion this section permits is clear. The transfer effect of an assignment order is recognized only where the requirements of finalization and concurrence are satisfied, and an assignment order lacking those requirements must not be treated as a valid claim transfer. Conversely, denying the transfer effect on the basis of unconfirmed facts also exceeds the bounds this section permits. Insufficiency of materials is a state of non-finalization, and does not immediately mean that no relief is available.
4.6The Strongest Counterargument and the Answer
In this scene, the creditor may learn of the concurrence only belatedly. Having in the preceding stage sorted out the distinction between the collection order and actual payment, what remains now is the question whether, despite such a time lag, an assignment order always transfers the claim.
Before answering this question, one first checks the text of the assignment order. Article 229 (3) of the Civil Execution Act provides, "Where an assignment order is issued, the attached claim is transferred to the attaching creditor in lieu of payment" (Civil Execution Act, Article 229). The subject indicated by this text is the attaching creditor; the object transferred is the attached monetary claim; and the transfer is effected not by actual payment but by the method of payment in lieu. This paragraph alone, however, does not explain both the time at which and the conditions under which the transfer effect arises.
The conditions continue in other paragraphs of the same Article. Article 229 (7) provides, "An assignment order has effect only when it becomes final and conclusive" (Civil Execution Act, Article 229), and Article 229 (5) provides, "Where, until the assignment order is served on the third debtor, another creditor has made an attachment, provisional attachment, or demand for distribution with respect to the monetary claim, the assignment order has no effect" (Civil Execution Act, Article 229). Finalization is the positive condition for the transfer effect to arise, and statutory concurrence is the negative condition under which that effect does not arise. This is why non-finalization and statutory concurrence must be viewed separately. The former is a state in which the establishment of the effect is not yet complete; the latter is a state in which the establishment itself is blocked.
What this distinction is aimed at is that the situation is the same even if the creditor learns late. The strongest counterargument is framed around the creditor's timing. Debtor protection and the concurrence procedure may render recovery of small claims virtually meaningless, and since the creditor may learn of the concurrence late, the losses incurred in the meantime and the inconvenience of the procedure fall upon the creditor. In a scene where financial institution C raises concurrence and the protected portion of the deposit as issues, creditor A may already have applied for an assignment order before ascertaining those facts. Yet, while leaving the counterargument's disadvantages as they stand, an assignment order in a state of non-finalization or statutory concurrence cannot be confirmed as a valid transfer. The time of awareness cannot substitute for the conditions prescribed by Article 229 (5) and (7).
Placed against the synthetic scene, the line of judgment becomes clear. The attachment by creditor A alone cannot be said to satisfy the statutory conditions for collection or assignment, and so long as financial institution C raises concurrence as an issue, whether statutory concurrence is confirmed is the crux. If statutory concurrence is confirmed at the time the assignment order is served on the third debtor, the conclusion that the order effects a valid claim transfer changes. However, this scene sets no year, amount, or start date, and contains no actual-payment materials. Accordingly, the existence of the claim and the scope of protection, and whether actual payment was made, remain undetermined. Non-finalization does not immediately mean that no relief is available, but nor does it lead to a confirmation of valid transfer.
This brings the conclusion this section permits to the following. For an assignment order to have the effect of transferring the attached claim to the attaching creditor in lieu of payment, finalization is required, and to the extent that statutory concurrence blocks it, that effect does not arise. The circumstance that the creditor learned of the concurrence late cannot change this condition. However, whether all of the debtor's claims can be bound was not addressed in this determination.
4.7The Link to the Application and the Dispositive Part
Although in the preceding section the judgment was reached that an assignment order in a state of non-finalization or statutory concurrence cannot be confirmed as a valid transfer, that sentence alone does not reveal whether an assignment order always transfers the claim. The question of this section is to determine what conditions must not simply be taken as following from the transfer effect of the assignment order.
The text concerning the assignment order directly stipulates the transfer effect. Article 229 (3) of the Civil Execution Act provides, "Where an assignment order is issued, the attached claim is transferred to the attaching creditor in lieu of payment" (Civil Execution Act, Article 229). Here the subject is the attaching creditor, the object is the attached monetary claim, and the act is a transfer in lieu of payment. Thus, it is to the attaching creditor and not to the creditor, by transfer and not by receipt of cash, and its object is limited to the monetary claim particularized by the attachment.
The conditions of that transfer are placed after the same provision. Article 229 (5) provides, "Where, until the assignment order is served on the third debtor, another creditor has made an attachment, provisional attachment, or demand for distribution with respect to the monetary claim, the assignment order has no effect" (Civil Execution Act, Article 229), and paragraph (7) provides, "An assignment order has effect only when it becomes final and conclusive" (Civil Execution Act, Article 229). These two paragraphs separately address, one, the reason for which the transfer effect does not arise, and the other, the temporal requirement for that effect to arise. The reason the rule of finalization and the rule of no effect upon concurrence must be viewed together with the transfer effect is that the two respectively take charge of the distinct stages of the establishment of the same transfer.
That a creditor may learn of the concurrence late refers to a situation in which creditor A receives a reply from financial institution C or materials of a demand for distribution only belatedly and only then becomes aware of another creditor's prior measure. It is true that this late awareness itself produces loss and inconvenience. Whether the concurrence existed before service on the third debtor is a fact already fixed at that time, and the circumstance that the creditor learned of it late does not change that fact.
In the synthetic scene, what financial institution C raises as an issue is the fact of concurrence and the protected portion of the deposit, not the presence or absence of actual payment. If the concurrence materials show an attachment, provisional attachment, or demand for distribution made before service on the third debtor, the order is not a valid transfer; and if there are no finalization materials, the requirements for the transfer effect have not yet been met. The protected portion of the deposit remains a question of the scope of its object. As the scene contains no year, amount, or start date, the timing and scale of actual payment or recovery cannot be fixed from this scene.
An assignment order does not always transfer a claim by itself. Only where it has obtained finalization and falls outside the rules of invalidity arising from the concurrence status before and after service on the third debtor is its effect as a transfer in lieu of payment recognized. Conversely, to confirm an assignment order in a state of non-finalization or statutory concurrence as a valid transfer runs counter to the determination of this section.
4.8The Scope This Section Undertakes
In this scene, what remains is what conditions must be satisfied after the account is bound before money can be received, and how far the range of responsibility this section holds exclusively extends. It is not determined whether the creditor has already secured the money by the attachment alone.
Article 229 of the Civil Execution Act provides that the effect produced by an assignment order is that "the attached claim is transferred to the attaching creditor in lieu of payment." Here the subject of the transfer is the attaching creditor, the object is the attached monetary claim, and the act is a transfer in lieu of payment. This text does not say whether an assignment order always brings that effect; it only defines the nature of the case in which the effect arises.
Accordingly, the definition of the transfer effect and the conditions under which that effect fails to arise must be read separately. Article 229 (7) of the same provision provides that "an assignment order has effect only when it becomes final and conclusive," and Article 229 (5) provides that "where, until the assignment order is served on the third debtor, another creditor has made an attachment, provisional attachment, or demand for distribution with respect to the monetary claim, the assignment order has no effect." This is why the stage of finalization and the stage of statutory concurrence must be viewed together. The finalization of an assignment order and the rule of no effect upon concurrence must be viewed together with the claim-transfer effect.
Yet the creditor may learn of the concurrence late. When creditor A applies for an assignment order against financial institution C, the procedure may be carried out without ascertaining whether another creditor's attachment has already been filed, or how much of the protected portion of the deposit remains within that monetary claim. No law in the established materials eliminates this inconvenience. The delay in recovery and the chilling of small-claim recovery that the counterargument points to remain as they stand. Treating an order before finalization, or an order with which statutory concurrence is confirmed before service, as a valid transfer would amount to erasing the conditions that Article 229 (5) and (7) attach to the transfer prescribed by Article 229 (3).
The facts that can be confirmed within this scene are only that creditor A attached the deposit of debtor B and that financial institution C raises concurrence and the protected portion of the deposit as issues. Whether an assignment order was issued, whether that order was served on financial institution C, whether it became final and conclusive, and whether another creditor made an attachment, provisional attachment, or demand for distribution before that service are not settled by the scene. If statutory concurrence is confirmed at the time the assignment order is served, the conclusion of a valid claim transfer changes; but this only distinguishes the case in which statutory concurrence becomes apparent at the time of service. What must be examined in the records is service on the third debtor, collection or assignment order, finalization, concurrence materials, deposit (payment into court), and payment receipts. If actual-payment materials are not confirmed, whether recovery is complete remains undetermined.
The conclusion this section permits is narrow. It is that an assignment order is an order that transfers the attached claim in lieu of payment, and that its transfer can be declared a valid transfer only where it has passed through both finalization and the statutory concurrence status at the time of service. What is not permitted is the conclusion that confirms an assignment order in a state of non-finalization or statutory concurrence as a valid transfer, and the conclusion that treats actual payment as already made on the strength of the attachment and the assignment order alone. Whether the deposit (payment into court) made, or the payment made, by third debtor financial institution C constitutes completed recovery is not determined here.
4.9Application of the Text of the Provisions and the Holdings of Precedents
If one adopts as a premise the distinction that a collection order merely grants the authority to collect without a subrogation procedure, and is different from actual payment, the question remains when that authority becomes fixed as an actual transfer.
The three phrases of the relevant text constitute the entire basis for judging this question. Article 229, paragraph (3) of the Civil Execution Act declares: "Where an assignment order has been issued, the attached claim is transferred to the attaching creditor in lieu of payment." In this text, the subject of the transfer is the attached monetary claim, the counterparty of the transfer is the attaching creditor, and the expression "in lieu of payment" signifies an effect distinct from actual payment by the third-party obligor. Paragraph (5) of the same Article, read together with paragraph (7) of the same Article, determines when this declaration does not arise.
Why the two phrases must be read together is apparent from the arrangement of the text. Article 229, paragraph (7) of the Civil Execution Act provides that "an assignment order has effect only when it becomes final and conclusive," thereby placing finality as a prior condition upon the declaration of transfer in paragraph (3). Article 229, paragraph (5) of the Civil Execution Act provides that "where, before the assignment order is served on the third-party obligor, another creditor has made an attachment, a provisional attachment, or a demand for distribution with respect to the monetary claim, the assignment order has no effect," thereby establishing concurrence, separate from finality, as a distinct condition of exclusion. Accordingly, two stages of judgment must be distinguished. An order lacking finality and an order that has acquired finality but loses effect on account of concurrence before service each bear a different defect. That these two cannot be bundled together and confirmed as a valid transfer is the conclusion that follows from this text alone.
The strongest counterargument targets the loss this distinction imposes on the creditor: the creditor may learn of the concurrence only belatedly. Only after applying for attachment and an assignment order does a reply come from Financial Institution C's side stating that another creditor's provisional attachment or demand for distribution existed; by then the creditor can hardly recover the costs and time already spent. Nor is the disadvantage erased that debtor protection and the concurrence procedure may render recovery of a small claim virtually meaningless. Yet even invoking that inconvenience cannot alter the exclusionary effect of concurrence as prescribed by the text. The counterargument criticizes only the result produced by the strictness of the condition; it does not prove the absence of that condition.
The facts confirmed in the synthetic scene are contrasted only within that limited scope. The fact that Creditor A attached Debtor B's deposit permits the assumption that the attached claim spoken of in paragraph (3) exists. The fact that Financial Institution C raises issues concerning the concurrence and the protected portion of the deposit means that whether another creditor has made an attachment, a provisional attachment, or a demand for distribution as prescribed by paragraph (5), and the scope of the protected portion, have not yet been determined. In this situation, whether the assignment order has become final and conclusive, and whether concurrence existed at the time of service, have not been confirmed by the records. Accordingly, on the basis of the present scene, the establishment of the transfer can neither be confirmed nor excluded.
What is permitted in this section is narrow. It can be said that the transfer effect in lieu of payment arises only where an assignment order on an attached monetary claim has become final and conclusive and the condition of exclusion for concurrence at the time of service has also been avoided. Beyond that, whether actual payment occurred, how much remains of the protected portion of the deposit, and whether recovery has been completed are not judged from this text alone. What is impermissible is to call an assignment order that is not yet final and conclusive, or that stands in a statutory state of concurrence, immediately a valid transfer. Can all of a debtor's claims be bound together?
4.10Fine Distinctions Within the Stage
What are the parts that must be separately determined within the transition from attachment to collection, assignment, and receipt? Article 229, paragraph (3) of the Civil Execution Act provides: "(3) Where an assignment order has been issued, the attached claim is transferred to the attaching creditor in lieu of payment." This text defines the assignment order as an order transferring the attached claim in lieu of payment. What the expression "in lieu of payment" denotes is not the attaching creditor actually receiving money from the third-party obligor, Financial Institution C, but the effect that the attached claim is transferred to Creditor A. Article 229, paragraph (7) provides: "(7) An assignment order has effect only when it becomes final and conclusive," attaching finality as a condition of effect.
Accordingly, the strong effect of transfer and the conditions under which that effect does not arise are determined in two separate stages. Article 229, paragraph (5) of the Civil Execution Act provides: "(5) Where, before the assignment order is served on the third-party obligor, another creditor has made an attachment, a provisional attachment, or a demand for distribution with respect to the monetary claim, the assignment order has no effect." Whether it is final and conclusive and whether concurrence existed up to the time of service must each be confirmed separately, because if either one is unmet, the transfer effect does not arise. The transition is established only where the service effect of attachment and the conditions of the monetization order are satisfied, the restrictions of protection and concurrence are reflected, and the actual payment records have been confirmed as well.
Even if Creditor A learns of the concurrence belatedly, an assignment order that is not final and conclusive or that stands in a statutory state of concurrence cannot be confirmed as a valid transfer. The disadvantage that Creditor A obtains information late and loses the opportunity for recovery is not small in practice. Yet where there is only attachment and the statutory conditions for collection and assignment or actual payment are lacking, or where the relevant monetization is restricted by an attachment prohibition or concurrence, the transition is blocked. The disadvantages pointed out by the counterargument are not erased, while the conditions of finality and concurrence are maintained unchanged.
In the synthetic scene, the concurrence and the protected portion of the deposit that Financial Institution C raises are directly connected to the foregoing conditions. Service on the third-party obligor, the collection order or assignment order, finality, concurrence records, deposit (payment into court), and a receipt of payment are the records required. The scope of the protected portion of the deposit and whether actual payment occurred cannot be determined from this scene alone, and therefore remain undetermined.
What this section permits is the detailed distinctions within the stages limited to the conditions expressly stated. It is impermissible to create additional stages outside the conditions marked as operative, blocked, and undetermined, and thereby extend the point in time or the requirements of transfer. Where, among the existence of the claim, the scope of protection, and actual payment, the necessary facts are not confirmed, they are left undetermined, and matters that have not been determined are not filled in arbitrarily.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
This sentence opens the present question. It is a matter of distinguishing whether the transition from attachment to collection, assignment, and receipt has reached an actual result, or has been blocked, or whether the grounds for judgment are lacking. In this scene, the examination concerns when the transfer effect of the assignment order opens, when it is blocked, and when it remains undetermined.
The transfer effect of the assignment order is prescribed by Article 229, paragraph (3) of the Civil Execution Act. Its text declares: "the attached claim is transferred to the attaching creditor in lieu of payment." The subject indicated by this provision is the attaching creditor; the object transferred is the attached claim; and the act that occasions the transfer is the assignment order. The expression "in lieu of payment" carries the meaning that the claim itself passes over, separately from actual payment by the third-party obligor. Here the author defines the assignment order as an order that transfers the attached claim to the attaching creditor in lieu of payment.
Between this text and the fixed conclusion lie the two stages of finality and concurrence. Article 229, paragraph (7) of the Civil Execution Act provides that "an assignment order has effect only when it becomes final and conclusive." An assignment order prior to finality has not yet produced the transfer effect, and thus the transfer of the claim cannot be confirmed on the declaration of transfer in paragraph (3) alone. Furthermore, Article 229, paragraph (5) of the Civil Execution Act provides that where, before it is served on the third-party obligor, another creditor has made an attachment, a provisional attachment, or a demand for distribution, "the assignment order has no effect." If paragraph (3) alone is read without these two distinctions, even an order that is not final and conclusive, or that has been nullified by concurrence, is mistakenly taken as a valid transfer.
The strongest counterargument is aimed at the point that the creditor may learn of the concurrence only belatedly. Where it is difficult for Attaching Creditor A to grasp from the outset the internal circumstances of Financial Institution C or the fact of another creditor's attachment or provisional attachment, reversing the effect of an assignment order already obtained by invoking concurrence learned of late produces the inconvenience and loss of making the creditor's recovery virtually meaningless. This counterargument cannot be ignored. Yet the author's answer is clear: the circumstance of having learned of the concurrence late is merely a matter of the time of confirmation, and cannot alter the conditions of effect prescribed by paragraphs (5) and (7).
In the synthetic scene, the facts relevant to this question are only the attachment and the raising of the issues of concurrence and protected deposits. Whether the concurrence raised by Financial Institution C falls under the attachment, provisional attachment, or demand for distribution by another creditor on the side contemplated by paragraph (5), and whether the protected portion of the deposit is subject to an attachment prohibition, are not determined from this scene alone. Whether the assignment order has become final and conclusive, the time of service, and the actual payment records have also not been confirmed. Accordingly, this scene cannot confirm its effect, and the items whose necessary facts are not confirmed are left undetermined.
The conclusions this section permits are narrow. Where, among the existence of the claim, the scope of protection, and actual payment, the necessary facts are not confirmed, they are left undetermined. These three are not merged into one, nor is the insufficiency of records converted directly into a bar to relief.
4.12Conclusion Carried Over to the Next Section
The preceding section summarized that where the service effect of attachment and the conditions of the monetization order are satisfied, the restrictions of protection and concurrence are reflected, and the actual payment records have been confirmed, it operates; where there is only attachment and the statutory conditions for collection and assignment or actual payment are lacking, or where the relevant monetization is restricted by an attachment prohibition or concurrence, it is blocked; and where, among the existence of the claim, the scope of protection, and actual payment, the necessary facts are not confirmed, it remains undetermined. That distinction addressed whether monetization had actually followed; the question now to be asked concerns the conditions of the transfer effect itself.
Article 229, paragraph (3) of the Civil Execution Act provides that "where an assignment order has been issued, the attached claim is transferred to the attaching creditor in lieu of payment"; paragraph (5) provides that "where, before the assignment order is served on the third-party obligor, another creditor has made an attachment, a provisional attachment, or a demand for distribution with respect to the monetary claim, the assignment order has no effect"; and paragraph (7) provides that "an assignment order has effect only when it becomes final and conclusive." Here the subject of the transfer is the attaching creditor, the object transferred is the attached monetary claim, and the phrase "in lieu of payment" means that the creditor takes that claim as his own share without receiving it directly. Yet paragraphs (5) and (7) jointly present the point in time at which the effect arises and the circumstances in which it does not arise.
The transfer effect under paragraph (3) does not end in itself, but is bound by the condition of finality in paragraph (7) and the concurrence rule of paragraph (5). The reason these two stages must be viewed together is that transfer is a strong result that changes the owner of the claim, and if one separates and judges when that result becomes final and what it becomes where another creditor has laid hands on it first, one exceeds the range fixed by the text. The conclusion of this section is that the finality of the assignment order and the rule of no effect upon concurrence must be viewed together with the claim transfer effect. Accordingly, an assignment order that is not final and conclusive or that stands in a statutory state of concurrence cannot be confirmed as a valid transfer.
The strongest counterargument arises from the point that the creditor may learn of the concurrence belatedly. Intertwined with the question whether all of a debtor's claims can be bound together, the concern is also great that the concurrence procedure may render recovery of a small claim virtually meaningless. This disadvantage cannot be ignored. Nevertheless, the conclusion is maintained within the scope that an assignment order that is not final and conclusive or that stands in a statutory state of concurrence cannot be confirmed as a valid transfer. The circumstance that the creditor learned of it late does not alter the rule of no effect as prescribed by the provision.
What can be confirmed in this scene is the fact that Creditor A attached Debtor B's deposit and the fact that Financial Institution C raises issues concerning the concurrence and the protected portion of the deposit. Contrasting these facts with the conditions of paragraphs (3), (5), and (7), whether a statutory concurrence existed at the time of service, and whether the assignment order became final and conclusive, bear directly on the establishment of the transfer effect. However, among service on the third-party obligor, the collection order or assignment order, finality, concurrence records, deposit (payment into court), and receipt of payment, what has been confirmed, and how far the scope of the protected portion of the deposit extends, are not determined from this scene alone. Years, amounts, commencement dates, and judgment outcomes not present in the synthetic scene have not been set, and the facts, service, and results of performance of an actual case are likewise not confirmed. Therefore, if a statutory concurrence is confirmed at the time the assignment order is served, the conclusion of a valid claim transfer changes; but this is merely an assumption for checking the conditions of determination and cannot be regarded as a fact confirmed here.
What this section permits is the judgment that reads the transfer effect of the assignment order together with the requirements of finality and the concurrence rule. What is impermissible is to confirm an assignment order that is not final and conclusive or that stands in a statutory state of concurrence as a valid transfer.