Summary
The statement acknowledging the claim, the deposit, and the creditor's actual receipt must be recorded separately so that the endpoint of execution is not overstated.
6.1The Standard by Which the Path Opens
Even between the fact that money lies with the court and the fact that money has reached me, a procedure remains. After distinguishing the types of attachment exemptions and the adjustment of scope upon application, and reflecting the current living-expenses-account provisions, the preceding stage separated out what is protected and what is in concurrence. Now, in the set synthetic scene, Creditor A has attached Debtor B's deposit, and Financial Institution C raises an issue as to the concurrence and the protected portion of the deposit. In this scene, what is at issue is whether the third-party debtor's reply or deposit (payment into court) is itself completion of recovery, or whether a separate stage of records remains.
The first text corresponding to this question is Article 237 of the Civil Execution Act. The Article provides that the attaching creditor may apply to the court to have the third-party debtor make a written statement within one week from the day on which the attachment order was served (Civil Execution Act, Article 237). The items of that statement are limited to whether the claim is acknowledged and, if acknowledged, the limit thereof; whether there is a willingness to pay and, if there is such willingness, the limit thereof; whether there is a claim from another person and the type thereof; and whether the fact exists that the claim has been attached by another creditor and the type of that claim (Civil Execution Act, Article 237). The subjects indicated by this text are the attaching creditor and the third-party debtor; the acts are the application for a written statement and the statement; and the condition is a period of one week after service of the attachment order. This statement is a record that reveals whether the claim is acknowledged and the fact of concurrence; it is not a record that money has reached the creditor.
In the same direction, Article 248 of the Civil Execution Act provides that the third-party debtor may deposit (payment into court) the entire amount of the monetary claim related to the attachment (Civil Execution Act, Article 248), and provides that when a deposit is made, the reason therefor must be reported to the court (Civil Execution Act, Article 248). The reason these two stages must be distinguished is that deposit and receipt denote different states. Here, deposit and receipt mean the distinction between the state of payment into the deposit office and the state of attribution to the creditor. Accordingly, the statement acknowledging the claim, the deposit, and the creditor's actual receipt must each be recorded separately, so that the point reached by execution is not exaggerated. Only when the effect of service of the attachment and the conditions of the monetization order are satisfied, the limitations of protection and concurrence are reflected, and the actual payment materials have been confirmed, can performance be judged.
There is a counterargument that maintaining this distinction may make recovery of small claims excessively difficult. That is, debtor protection and concurrence procedures may render recovery of small claims practically meaningless. Nor do I deny that separate records may make simple execution excessively complicated. This counterargument, however, targets the burden of records and delay in recovery; even so, the report of the reason for deposit cannot be converted into the creditor's completion of receipt. The duty to report is a procedure of notifying the court of the fact of deposit, and the distinction is maintained that receipt is a state of attribution to the creditor.
Viewed in the synthetic scene, the concurrence and the protected portion of the deposit raised by Financial Institution C are factors that limit the scope reached by the attachment. Where there is only an attachment and no statutory conditions for collection or assignment, or no actual payment, or where the relevant monetization is limited by attachment exemption or concurrence, the entrance to this relief is not opened. If, among the third-party debtor service, collection or assignment order, finality, concurrence materials, deposit, and payment receipt, the necessary materials cannot be confirmed, the matter remains undetermined. If statutory concurrence is confirmed at the time the assignment order is served, the conclusion of a valid transfer of the claim under that order changes.
The conclusion permitted by this section is narrow. The statement, the deposit, and the receipt each constitute separate records, and only when the actual payment materials have been confirmed can one say that recovery has been achieved. It cannot be categorically asserted that money has been attributed to the creditor on the basis of the third-party debtor's reply alone, or on the basis of the deposit and the report of its reason alone. Nor, however, can a state of insufficient materials be immediately pronounced to be a failure of relief; the range in which necessary facts remain unconfirmed stays undetermined.
6.2The Conditions That Block Relief
In the preceding section, I took the view that this relief operates where, after the effect of service of the attachment and the conditions of the monetization order are satisfied and the limitations of protection and concurrence are reflected, the actual payment materials have also been confirmed. Creditor A has attached Debtor B's deposit, but Financial Institution C raises an issue as to the concurrence and the protected portion of the deposit. In this scene, one must ask whether the third-party debtor's reply or deposit has reached completion of recovery.
Article 237 of the Civil Execution Act provides in paragraph (1) that the attaching creditor may apply to the court to have the third-party debtor make a written statement within one week from the day on which the attachment order was served. Here, the person who makes the statement is the third-party debtor, and the subject matter is the acknowledgment of the claim, the willingness to pay, a third party's claim, and a concurrent attachment.
What this text requires is the third-party debtor's written statement, not the fact that actual payment has reached the creditor. The confirmation of actual payment materials, treated above as the case in which the relief operates, must not be placed at the same stage as this statement; where the timing and nature of the two records diverge, the conditions that block this relief are revealed. Where there is only an attachment and no statutory conditions for collection or assignment, or no actual payment, or where the relevant monetization is limited by attachment exemption or concurrence, this relief is blocked.
Separate records may make simple execution excessively complicated. It is also an undeniable disadvantage that creditor protection and concurrence procedures may render recovery of small claims practically meaningless. Even so, the report of the reason for deposit cannot be converted into the creditor's completion of receipt. Article 248(4) of the Civil Execution Act provides that where the third-party debtor has deposited the amount of the debt, the reason therefor must be reported to the court, and that where no report is made within a reasonable period, the attaching creditor, a provisional attachment creditor, a creditor participating in distribution, the debtor, and other interested persons may report the reason to the court (Civil Execution Act, Article 248). That report is only the notification to the court of the fact of deposit and does not indicate the creditor's completion of receipt.
Article 248(1) of the Civil Execution Act provides that the third-party debtor may deposit the entire amount of the monetary claim related to the attachment (Civil Execution Act, Article 248). What this provision permits is the third-party debtor's deposit of the entire amount, not attribution to the creditor; neither the protected portion of the deposit raised by Financial Institution C nor the monetization barred by concurrence is opened by this deposit. The actual service materials, the time of deposit, the payment receipt, and the determined scope of concurrence, none of which is present in the synthetic scene, are not determined at this point.
The conclusion permitted in this section is the judgment that where there is only an attachment and no statutory conditions for collection or assignment, or no actual payment, or where the relevant monetization is limited by attachment exemption or concurrence, this relief is blocked. This section does not permit the judgment that the creditor has completed recovery merely on the basis of the fact that the third-party debtor's statement acknowledging the claim or report of the reason for deposit was made. Facts for which the necessary materials cannot be confirmed are left undetermined.
6.3The Boundary That Remains When There Is No Data
From the preceding stages, only the premise is carried over: distinguishing the types of attachment exemptions and the adjustment of scope upon application, and reflecting the current living-expenses-account provisions. In this scene, what is at issue is whether the third-party debtor's reply or deposit is a state in which the money has reached the creditor, or a state prior thereto.
The provision corresponding to this question is Article 237(1) of the Civil Execution Act, which provides that the attaching creditor may apply to the court to have the third-party debtor make a written statement within one week from the day on which the attachment order was served. The items of that statement are whether the claim is acknowledged and the limit thereof; whether there is a willingness to pay and the limit thereof; whether a claim by another person exists and the type thereof; and whether the fact of attachment by another creditor exists and the type of that claim. The subjects prescribed by this provision are the attaching creditor and the third-party debtor; the acts are the application for and the making of a statement in writing; and the condition is the period of one week after service of the attachment order.
Judged according to this text, the third-party debtor's reply is a statement revealing the acknowledgment of the claim, the willingness to pay, a third party's claim, and the existence of concurrence; it is not the creditor's receipt. Article 248(1) of the Civil Execution Act merely provides that the third-party debtor may deposit the entire amount of the monetary claim related to the attachment. Here the reason for distinguishing deposit from receipt becomes clear. Deposit is a state of payment into the deposit office, and receipt is a state of attribution to the creditor; confirming the former state does not amount to confirming the latter state as well.
The counterargument that separate records may make simple execution excessively complicated targets substantive inconvenience. In the case of small claims, the procedural cost of recording the statement, the deposit, and the receipt separately may dwarf the amount recovered, and there is the concern that debtor protection and concurrence procedures may render recovery practically meaningless. Article 248(4) of the Civil Execution Act provides that where the third-party debtor has deposited the amount of the debt, the reason therefor must be reported to the court; the object of this report is the court, and its content is the reason for the deposit, not the fact that money has been attributed to the creditor.
In the synthetic scene, Financial Institution C raises an issue as to the concurrence and the protected portion of the deposit. This fact means that it has not been determined which portion of the attached deposit is subject to another creditor's claim or to an attachment exemption, nor what the third-party debtor can actually pay. Accordingly, matters for which necessary facts among the existence of the claim, the scope of protection, and the actual payment cannot be confirmed remain as cases in which the materials for judgment are not specified. Because no year, amount, or commencement date is set in the synthetic scene, neither the result nor the timing of recovery can be judged on this scene alone.
The conclusion permitted by this section is to regard the third-party debtor's reply, the deposit, and the creditor's receipt as separate units of record, and to leave unconfirmed facts as undetermined rather than impossible. Neither can the possibility of recovery be denied on the ground that there are no materials, nor can completion of recovery be confirmed. Instead of converting the report of the reason for deposit into the creditor's completion of receipt, that report must be read only as a record of the fact of deposit.
6.4The Records Needed for Determination
What must now be asked is the record of the judgment as to whether the third-party debtor's reply or deposit is itself the completion of recovery. Through the preceding stages, the direction was set of distinguishing the types of attachment exemptions and the adjustment of scope upon application, and reflecting the current living-expenses-account provisions; now, within that settled scope, only the record that determines the point at which execution has arrived is at issue. In this scene there may be a reply from the third-party debtor and there may be a deposit, but what each of those records shows must be read separately. The point reached is determined by the record, not by the name of the stage.
Among the texts serving as the basis for the determination, Article 237 of the Civil Execution Act prescribes the items for which the attaching creditor may apply to the court to have the third-party debtor make a written statement. Its paragraph (1) divides the matters to be stated in writing by the third-party debtor within one week from the day on which the attachment order was served into "1. whether the claim is acknowledged and, if acknowledged, the limit thereof, 2. whether there is a willingness to pay the claim and, if there is such willingness, the limit thereof, 3. whether there is a claim from another person with respect to the claim and, if there is such a claim, the type thereof, 4. whether the fact exists that the claim has been attached by another creditor and, if such fact exists, the type of that claim" (Civil Execution Act, Article 237). The subject indicated by this text is the third-party debtor, the act is the written statement, and the condition is the service of the attachment order and the statement within the resulting time limit. Accordingly, the statement is merely a record that reveals the acknowledgment of the claim, the willingness to pay, another person's claim, and the fact of another attachment; in itself it does not state the fact that money has been attributed to the creditor.
This basis and the conclusion of this section connect precisely. The stage is determined only by the materials recorded in third-party debtor service, collection or assignment order, finality, concurrence materials, deposit, and payment receipt, and the determination of the stage is made only on the basis of settled records, without filling in missing records by inference. The reason the statement acknowledging the claim must be distinguished from actual receipt is that the former is a record of a statement concerning the existence and limit of the claim, whereas the latter is a record showing the state of attribution to the creditor. Article 248 of the Civil Execution Act provides that the third-party debtor may deposit the entire amount of the monetary claim related to the attachment (Civil Execution Act, Article 248), and paragraph (4) of the same Article separately deals with the report of the reason upon deposit and the report by interested persons where no such report is made (Civil Execution Act, Article 248). The record of the deposit and of the report of the reason shows only the state of payment into the deposit office and does not substitute for the record of the creditor's receipt.
The side pressing the counterargument most strongly points out that separate records may make simple execution excessively complicated. The inconvenience is not small. In a scene where attachment exemption and concurrence are raised together, Creditor A seeks swift recovery; if the written statement, the report of the reason for deposit, and the payment receipt must each be confirmed, then in the recovery of small claims that procedural cost may be felt heavily. Even without erasing this adverse aspect, the conclusion stands. For the report of the reason for deposit cannot be converted into the creditor's completion of receipt. The object of the report of the reason for deposit is the reason that caused the deposit, and, as the text of Article 248(4) of the Civil Execution Act separates the subject and channel of the report, that report is a record notifying the court of the fact of the deposit (Civil Execution Act, Article 248). If that record is read as a record of completion of receipt, the point reached will precede the record.
The facts that can be confirmed in the synthetic scene are limited. Contrasting this fact with the conditions above, the third-party debtor's record of statement corresponds to sorting out the acknowledgment of the claim and the willingness to pay, another person's claim, and the fact of another attachment, while the record of deposit corresponds to showing the payment of the full amount and the report of the reason. By contrast, whether Creditor A actually received payment, which amount is a protected deposit, and what effect concurrence has upon the valid transfer of the claim under the assignment order cannot be determined on this scene alone. If statutory concurrence is confirmed at the time the assignment order is served, the conclusion of a valid transfer of the claim changes; but because no such confirmation exists, the matter remains undetermined.
The conclusion permitted by this section is narrow. To speak of the point reached by execution on the basis of the third-party debtor's reply or deposit, there must be, among the third-party debtor service, collection or assignment order, finality, concurrence materials, deposit, and payment receipt, a record showing the relevant stage, and missing records cannot be filled in by inference. The report of the reason for deposit is read only as a record notifying the court of the deposit and does not become a record of the creditor's completion of receipt. Accordingly, "money lies with the court" and "money has reached me" are different stages, and the latter cannot be asserted on the basis of the record of the former alone. To go beyond this distinction and categorically assert completion of recovery up to the range in which necessary facts among the existence of the claim, the scope of protection, and the actual payment remain unconfirmed is not permitted.
6.5Circumstances That Change the Decision
If the preceding analytical stage stops at distinguishing the types of non-attachability and the scope adjustment upon application, and at reflecting the current living-expense account provisions, this stage asks whether the third-party debtor's reply or deposit is at once completion of recovery. In this scene, where Creditor A attached Debtor B's deposits but Financial Institution C raises an issue as to concurrence and the protected portion of deposits, the fact that reply, deposit, and receipt stand at different stages remains a question of how the already confirmed materials are to be read. This question lies not so much in the movement of money itself as in determining how far the point of attainment of that movement is to be recognized.
The statutory text corresponding to this question enumerates the subjects of the third-party debtor's statement. Article 237(1) of the Civil Execution Act provides, as matters for which the attaching creditor may apply to the court, whether the claim is acknowledged and the limit thereof, whether there is a willingness to pay and the limit thereof, whether there is a claim by a third party and its type, and whether the claim has been attached by other creditors and the type of such claim (Civil Execution Act, Article 237). Here the parties are the attaching creditor and the third-party debtor, the act is the request for a written statement, and the condition is a period within one week from the date of service of the attachment order. This statement is placed as a record separate from the creditor's actual receipt.
The same material also prescribes the position of deposit. Article 248(1) of the Civil Execution Act provides that the third-party debtor may deposit the entire amount of the monetary claim related to the attachment (Civil Execution Act, Article 248), and paragraph (4) provides that upon making the deposit, the reason therefor shall be reported to the court (Civil Execution Act, Article 248). Herein lies the reason why a distinction is needed between the state of having paid into the deposit office and the state of having become vested in the creditor—that is, the distinction between deposit and receipt. The former merely moves the debtor's place of performance, while the latter concerns a judgment as to the creditor's point of recovery; if the two are merged into one, how far the execution stage has proceeded becomes inflated.
Nevertheless, the counterargument that separated records may render simple execution excessively complicated is not small. It consists in the loss and inconvenience that, in the recovery of small claims, when debtor protection and concurrence procedures overlap, the cost of recovery may exceed the benefit of recovery. The report goes no further than submitting the fact of deposit to the court, while receipt requires the state of having become vested in the creditor; accordingly, the burden identified by the counterargument lies not in the separation of records itself, but in the choice not to exaggerate the point of attainment by reason of that separation.
In the synthetic scene, the concurrence and the protected portion of deposits raised by Financial Institution C overlap with the point that, among the statement items required by Article 237(1), a record concerning other creditors' attachment and the scope of protection is necessary. However, since no year, amount, accrual date, or date of service is fixed in this scene, the point at which actual concurrence arises or the size of the protected amount cannot be determined from this material. Once that confirmation comes in, the existing judgment on blocking and effectiveness is discarded, and the judgment is redone from the stage of transition from attachment to collection, transfer, and receipt, while unconfirmed matters remain undetermined.
The conclusion this section permits is narrow. Provided that the third-party debtor's statement, the report of the reason for deposit, and the creditor's actual receipt are each placed as separate records, and the distinction of not treating deposit as immediate completion of recovery is maintained, the point of attainment of execution is not exaggerated. Conversely, a judgment that reads the report of the reason for deposit as completion of receipt, draws a conclusion on the premise of unestablished concurrence, or fills in receipt with unverified materials is not permitted by this section.
6.6The Strongest Counterargument and the Answer
In this scene, if the third-party debtor's reply or deposit is written as completion of recovery, it becomes unclear how far the point of attainment of execution has reached. Unless the records are kept separate, the amount paid into the deposit office and the amount that reached the creditor are bundled into the same item. Confronting this problem, the strongest counterargument aims at the point that separated records may render simple execution excessively complicated. The loss this counterargument faces is the inconvenience that the recovery procedure for small claims becomes virtually meaningless.
The relevant text first determines what the third-party debtor's reply contains. Under Article 237 of the Civil Execution Act, the attaching creditor may apply to the court to have the third-party debtor state in writing the following items within one week from the date of service of the attachment order. The statement includes whether the claim is acknowledged and, if so, the limit thereof; whether there is a willingness to pay the claim and, if so, the limit thereof; whether there is a claim by another person with respect to the claim and, if so, the type thereof; and whether the claim has been attached by other creditors and, if so, the type of that claim. The party addressed by this text is the third-party debtor served with the attachment order, the act is a written statement through the court, and the time is within one week from the date of service. The same text does not deal with the third-party debtor's actual payment or the creditor's receipt.
Linking this text with the conclusion of this section reveals why reply, deposit, and receipt diverge. Article 248 of the Civil Execution Act provides that "the third-party debtor may deposit the entire amount of the monetary claim related to the attachment," and Article 248(4) provides that "when the third-party debtor has deposited the amount of debt, he or she shall report the reason therefor to the court." Under this provision, the report of the reason for deposit remains an act of informing the court of the fact that a deposit was made and of the reason therefor. By contrast, the creditor's receipt means the state in which the amount paid into the deposit office has become vested in the creditor. Only by distinguishing these two does the conclusion hold that the report of the reason for deposit cannot be converted into completion of the creditor's receipt.
The loss entailed by this distinction is clear. The process by which the attaching creditor separately records and confirms the third-party debtor's reply, the fact of deposit, and the actual payment materials lengthens the procedure. In the recovery of small claims, if that additional recording and confirmation exceed the cost of recovery, the creditor may not commence execution at all. The conclusion holds even without erasing this disadvantage. The report of the reason for deposit goes no further than a report informing the court of the fact that a deposit was made; accordingly, on the basis of that report alone, the amount cannot be regarded as having become vested in the creditor. Even if the third-party debtor has reported the reason for deposit, whether the creditor has actually received payment is a matter to be confirmed separately. The excessive complexity identified by the counterargument is a cost brought about by the separation of records, not a ground for converting the report of the reason for deposit into receipt.
Returning to the synthetic scene, on the basis of the fact alone that the third-party debtor sent a reply or made a deposit, it cannot be written that the whole of B's deposits came to A. So long as Financial Institution C raises an issue as to concurrence and the protected portion of deposits, there remains a scope in which the relevant monetization is restricted by non-attachability and concurrence, and there also remains a portion where there is only attachment but no statutory conditions for collection or transfer, or no actual payment. In this scene, the reply does not exceed the scope of the statement prescribed by Article 237(1), and the deposit does not exceed the facts of payment and report prescribed by Article 248(1) and (4). The portion for which the creditor's actual receipt materials remain unconfirmed remains undetermined. A lack of materials does not immediately mean that no relief is available; it must remain as facts that cannot be determined.
The conclusion this section permits is the limited judgment of recording the report of the reason for deposit and the creditor's actual receipt separately, and not adding the latter to the former. What it does not permit is writing the third-party debtor's reply or the report of the reason for deposit as completion of recovery, or regarding monetization beyond the restrictions of non-attachability and concurrence as complete on the basis of that report alone. Conversely, for the portion where even the actual payment materials have been confirmed, receipt may be recorded within the scope of that confirmation. If this distinction is collapsed, the point of attainment of execution is exaggerated and the record separation of the preceding stage breaks down.
6.7The Link to the Application and the Dispositive Part
Although the preceding section adopted the conclusion that the report of the reason for deposit cannot be converted into completion of the creditor's receipt, unless what that difference is is confirmed by concrete records, the point of attainment is difficult to gauge. In this state, is the third-party debtor's reply or deposit truly completion of recovery, or is it an earlier stage? The question begins with distinguishing the kinds of events recorded by the execution procedure.
To answer this question, the analysis first examines the clause requiring the third-party debtor to make a written statement. Article 237(1) of the Civil Execution Act provides: "(1) The attaching creditor may apply to the court to have the third-party debtor state in writing the following items within one week from the date of service of the attachment order," and among the statement items it places "1. Whether the claim is acknowledged and, if so, the limit thereof" (Civil Execution Act, Article 237). This text specifies the subject of the statement as the third-party debtor, the timing of the statement as within one week after service of the attachment order, and the form as writing. What is required here is a statement concerning whether the claim is acknowledged and the limit thereof, and this statement does not mean that money has moved to the creditor.
Next, looking at the deposit clause, the ground of the distinction becomes clear. Article 248(1) of the Civil Execution Act provides: "(1) The third-party debtor may deposit the entire amount of the monetary claim related to the attachment" (Civil Execution Act, Article 248), and paragraph (4) imposes the duty of report upon making the deposit (Civil Execution Act, Article 248). Deposit refers to the state in which the third-party debtor has paid the monetary claim related to the attachment into the deposit office, and the creditor's actual receipt refers to the state in which that money has become vested in the creditor. The two states are completed at different times, and if they are bound together in a single record, it becomes difficult to judge at which point of the transition from attachment to collection, transfer, and receipt has been reached.
Of course, there is the counterargument that separated records may render simple execution excessively complicated. It is also pointed out that debtor protection and concurrence procedures may render the recovery of small claims virtually meaningless. The loss and inconvenience are not small. However, the report of the reason for deposit is merely a procedure of informing the court of the fact of deposit, and that report cannot be converted into completion of the creditor's receipt. Even reflecting the restrictions of protection and concurrence, the method of merging the records of each stage to fix the point of attainment erases the distinction between statutory conditions and actual payment.
Returning to the synthetic scene, Financial Institution C's raising an issue as to concurrence and the protected portion of deposits connects with the effect of service of attachment and the conditions of the monetization order examined earlier. However, in this scene it is not determined whether the third-party debtor made a written statement, whether a deposit was made, or whether Creditor A actually received payment. Where there is only attachment but no statutory conditions for collection or transfer, or no actual payment, or where the relevant monetization is restricted by non-attachability and concurrence, it cannot be regarded as completion of recovery. Items for which the necessary facts remain unconfirmed remain undetermined.
The conclusion this section permits is the narrow judgment that the point of attainment of execution is not exaggerated only if the statement acknowledging the claim, the deposit, and the creditor's actual receipt are recorded separately. This conclusion is maintained only insofar as it does not convert the report of the reason for deposit into completion of the creditor's receipt, and it does not permit the expansive interpretation that deposit is at once completion of recovery. Conversely, the conclusion that both reply and deposit are meaningless is likewise outside the scope of this section.
6.8The Scope This Section Undertakes
One accepts the premise stated earlier: distinguishing the types of non-attachability and the scope adjustment upon application, and reflecting the current living-expense account provisions. How should the intermediate records be read, from the point after deposits held by Financial Institution C have been frozen by court order until Creditor A actually gets the money into his hands? In particular, when it comes to the question whether the third-party debtor's reply or deposit is completion of recovery, an attitude is needed that does not, on the basis of a single fact, wrap up the preceding and following stages together as finished. That the existence of the claim to be recovered has been confirmed and that the value of that claim has actually passed to the creditor are matters of different points in time.
One of the texts corresponding to this section is Article 237 of the Civil Execution Act. Article 237(1) provides: "The attaching creditor may apply to the court to have the third-party debtor state in writing the following items within one week from the date of service of the attachment order," and then, in subparagraph 1, asks "whether the claim is acknowledged and, if so, the limit thereof," in subparagraph 2, "whether there is a willingness to pay the claim and, if so, the limit thereof," in subparagraph 3, "whether there is a claim from another person with respect to the claim and, if so, the type thereof," and in subparagraph 4, "whether the claim has been attached by other creditors and, if so, the type of that claim" (Civil Execution Act, Article 237). Here the subject of the statement is a third-party debtor such as Financial Institution C, and the object is the monetary claim that has become the subject of attachment. The statement is made in writing and is bound by the time limit of within one week from the date of service of the attachment order. What this provision determines is the confirmation of whether the claim is acknowledged and the limit thereof, the willingness to pay, and the existence of other claims or concurrence attachments.
The acknowledgment statement confirmed by this text must be recorded as distinct from the creditor's actual receipt. The author takes the view that the statement acknowledging the claim, the deposit, and the creditor's actual receipt must each be recorded separately, lest the point of attainment of execution be exaggerated. The fact that Third-party Debtor C issued a statement acknowledging the claim and stating its limit means a procedural confirmation that, within the scope frozen by attachment, a recoverable object remains. That confirmation sets the starting point of recovery but does not mean that the money has already reached Creditor A. The distinction between deposit and receipt is the distinction between the state of payment into the deposit office and the state of vesting in the creditor; if the distance between these two states is eliminated, one can no longer read how far the execution procedure has proceeded. Therefore, the separated records are not ornamentation for attaching the names of stages, but a condition for honestly marking the point of attainment of recovery.
The counterargument that separated records may render simple execution excessively complicated aims precisely at the burden. If debtor protection and concurrence procedures are layered onto the recovery of small claims, cost and time may exceed the practical benefit, and for Creditor A the more numerous the procedures, the more the situation becomes one in which recovery is virtually meaningless. In the scene where Financial Institution C raises an issue as to concurrence and the protected portion of deposits, this disadvantage is especially heavy. Article 248(4) of the Civil Execution Act provides: "When the third-party debtor has deposited the amount of debt, he or she shall report the reason therefor to the court: Provided, that if no report is made within a reasonable period, the attaching creditor, a provisional attaching creditor, a creditor participating in distribution, the debtor, or any other interested party may report the reason to the court." (Civil Execution Act, Article 248). This report is a procedural record of informing the court of the fact of deposit; while acknowledging in full the weight of the procedure identified by the counterargument, one cannot make a substitution to the effect that the report led to receipt.
The facts that can be confirmed in this scene are only that Creditor A attached Debtor B's deposits and that Financial Institution C raises an issue as to concurrence and the protected portion of deposits. Article 248(1) of the Civil Execution Act provides: "The third-party debtor may deposit the entire amount of the monetary claim related to the attachment." (Civil Execution Act, Article 248). This text determines only the object and scope of the deposit, and does not contain the conclusion that the deposit is immediately payment to Creditor A. Since the scene does not fix the year, amount, accrual date, or whether payment was made, whether Creditor A has reached actual receipt, what amount is protected, and how much concurrence restricts actual payment cannot be determined from this scene alone. What can be confirmed is the criterion of distinction that the statement acknowledging the claim, the deposit, and the creditor's actual receipt must each be placed as separate record items. The point at which the judgment becomes fixed is when the receipt materials are confirmed; if those materials are lacking, it remains undetermined.
The conclusion this section permits is narrow. Third-party Debtor C's reply is a record of the stage confirming the acknowledgment and limit of the claim; the deposit is a record of the stage creating the state of payment into the deposit office; and Creditor A's actual receipt is the record of the stage in which the value of that claim becomes vested in the creditor. A reading that merges these three into one and calls it completion of recovery is not permitted. Conversely, the fact alone that the procedures are separated does not mean that recovery never ends. Only the boundary that the report of the reason for deposit cannot be converted into completion of the creditor's receipt is settled.
6.9Application of the Text of the Provisions and the Holdings of Precedents
The preceding step confirmed that the third-party debtor's reply and a deposit do not immediately mean that money has reached the creditor, and the question now is by what wording the performance that follows is determined.
One of the provisions corresponding to this question is the system by which a written statement is demanded from the third-party debtor after service of the attachment order. Article 237 (1) of the Civil Execution Act provides that an attaching creditor may apply to the court to have the third-party debtor state in writing, within 1 week from the date on which the attachment order is served, the matters in each of the following subparagraphs (Civil Execution Act Article 237). The matters to be stated are whether the claim is recognized and, if recognized, the limit thereof, the willingness to pay and the limit thereof, whether another person has made a claim and the type thereof, and the fact that the claim has been attached by another creditor and the type of that claim.
Since this wording concerns the procedure of recording the third-party debtor's reply, treating performance as completed on the basis of the fact that the reply was received and the statement recognizing the claim contained in it is a judgment belonging to another stage. Article 248 (1) of the Civil Execution Act declares that the third-party debtor may deposit the full amount of the monetary claim related to the attachment, and paragraph (4) of the same Article provides that when the third-party debtor deposits the amount of the debt, he or she shall report the reason therefor to the court (Civil Execution Act Article 248). Since these two provisions govern the making of the deposit and the report thereof, respectively, they cannot be bound together into one and read as completion of receipt.
If this distinction is ignored, the problem arises that the procedural costs of recovering a small claim appear larger than the amount actually recovered. It cannot be denied that keeping records separate may make simple execution excessively complicated, and the concern that debtor protection and competing proceedings may render the recovery of small claims virtually meaningless also remains as it is. The distinction is maintained that a report is an act informing the court of the reason, whereas receipt is a state attributed to the creditor.
In light of the wording of the respective subparagraphs of Article 237 (1), the reply of financial institution C is merely material disclosing whether the claim is recognized, the willingness to pay, the existence of other claims, and the fact of attachment by other creditors, while the report of the reason for deposit is a separate record required by Article 248 (4). Because, among the existence of the claim, the scope of protected deposits, and whether actual payment has been made, the necessary facts have not been confirmed, completion of receipt cannot be determined on the basis of this scene alone.
In sum, the performance from attachment to collection, assignment, and receipt is judged by treating the statement under Article 237 (1), the possibility of deposit under Article 248 (1), and the report of the reason for deposit under Article 248 (4) as wordings in their own right. Since these provisions apply only within their respective scope, the judgment cannot be broadened by the reasons for the judgment or by the contents of other paragraphs, and the distinction between the state of payment into the deposit office and the state of attribution to the creditor likewise remains.
6.10Fine Distinctions Within the Stage
This question begins from the fact that the preceding section did not treat the third-party debtor's reply or deposit as conclusively completing recovery. What remains is to clarify which parts are to be separately determined within the performance from attachment to collection, assignment, and receipt.
Civil Execution Act Article 237 provides that an attaching creditor may apply to the court to have the third-party debtor state in writing, within 1 week after service of the attachment order, four matters (Civil Execution Act Article 237). The matters to be stated are whether the claim is recognized and, if recognized, the limit thereof, whether there is a willingness to pay and the limit thereof, whether another person has made a claim and the type thereof, and the fact that the claim has been attached by another creditor and the type of that claim. The subjects of this wording are the attaching creditor who makes the application and the third-party debtor who makes the statement, the act is applying to the court to have a written statement made, and the conditions are service of the attachment order and the period of 1 week.
This statement merely places the existence of the debt and the state of concurrence on the record, and does not of itself attribute money to the creditor. For the same reason, even though Article 248 (1) of the Civil Execution Act provides that the third-party debtor may deposit the full amount of the monetary claim related to the attachment (Civil Execution Act Article 248), a deposit is no more than a state of payment into the deposit office. Accordingly, the detailed distinctions within the stage are limited to the conditions of when it operates, when it is blocked, and when it remains undetermined.
From the creditor's standpoint, the inconvenience is not small that if, even though the third-party debtor has already recognized the claim and set the money aside, one must still await the payment receipt, recovery is delayed, and the smaller the claim, the greater that burden feels. Yet the report of the reason for deposit cannot be turned into completion of receipt by the creditor. Article 248 (4) of the Civil Execution Act provides that when the third-party debtor deposits the amount of the debt, he or she shall report the reason therefor to the court (Civil Execution Act Article 248), and since a report does not mean receipt, the point of arrival cannot be guessed from that record alone.
In the synthetic scene, financial institution C raises the concurrence and the protected deposit portion as issues, so where there is only attachment and no statutory conditions for collection or assignment and no actual payment, or where monetization is restricted by non-attachability or concurrence, it does not fall within the operating case. Where the necessary facts among the existence of the claim, the scope of protection, and actual payment are not confirmed, it remains undetermined. Parts where the necessary records among service on the third-party debtor, a collection or assignment order, finalization, concurrence materials, deposit, and payment receipt are not confirmed are not determined here. If a statutory concurrence is confirmed when the assignment order is served, the conclusion of a valid assignment of the claim changes.
What this section permits is to distinguish statement, deposit, and receipt according to the stated conditions and record them accordingly; what it does not permit is to determine receipt by the creditor solely from a report of the reason for deposit or a reply from the third-party debtor, or to insert a new stage between procedures in order to make a judgment. Years, amounts, accrual dates, and judgment outcomes not present in the synthetic scene are not placed into the judgment, and the performance outcome of an actual case is not determined here either. The meaning of the reply and the deposit left by the preceding section is understood only under this distinction.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
Whether the third-party debtor's reply or deposit leads immediately to completion of recovery is this question. In this scene, the stage at which each record is placed is examined separately.
The provision corresponding to this question is Article 237 of the Civil Execution Act. That Article provides: "(1) An attaching creditor may apply to the court to have the third-party debtor state in writing, within 1 week from the date on which the attachment order is served, the matters in each of the following subparagraphs. 1. Whether the claim is recognized and, if recognized, the limit thereof 2. Whether there is a willingness to pay the claim and, if so, the limit thereof 3. Whether another person has made a claim with respect to the claim and, if so, the type thereof 4. Whether the claim has been attached by another creditor and, if so, the type of that claim." Here the subjects are the attaching creditor and the third-party debtor, the act is a written statement, and the point in time is within 1 week after service of the attachment order. This wording only has the third-party debtor's state of knowledge placed on the record; it does not declare the completion of payment.
The record under this Article must be placed alongside the statement recognizing the claim, the deposit, and the creditor's actual receipt, so that the point of reach of the execution is not exaggerated. Article 248 of the Civil Execution Act provides: "(1) The third-party debtor may deposit the full amount of the monetary claim related to the attachment." and "(4) When the third-party debtor has deposited the amount of the debt, he or she shall report the reason therefor to the court. However, if no report is made within a reasonable period, the attaching creditor, the provisional attaching creditor, a creditor participating in distribution, the debtor, and other interested parties may report the reason to the court." Here deposit and receipt mean the distinction between the state of payment into the deposit office and the state of attribution to the creditor; therefore, if the two stages are merged, the distinction between the conditions that open and the conditions that block collapses.
The inconvenience targeted by the counterargument, that keeping records separate may make simple execution excessively complicated, is not small. As materials grow, recovery of small claims may become virtually meaningless, and debtor protection and competing proceedings may delay recovery itself. The operating condition is one in which the effect of service of attachment and the conditions of the monetization order are in place, the restrictions of protection and concurrence have been reflected, and the actual payment materials have then been confirmed; the blocking condition is one in which there is only attachment and no statutory conditions for collection or assignment and no actual payment, or in which the relevant monetization is restricted by non-attachability or concurrence.
In the synthetic scene, the concurrence and the protected deposit portion raised by financial institution C operate as restrictions that block the operating condition. The effect of service of the attachment secured by creditor A alone does not monetize the portion exceeding the scope of protection, and if concurrence materials are confirmed, the relevant monetization is restricted. However, the actual time of service, the amount, and the presence or absence of a payment receipt are not set in this scene and remain undetermined. If a statutory concurrence is confirmed at the time of service of the assignment order, it changes the conclusion that the order effects a valid assignment of the claim, but absent such confirmation this scene yields no determinate conclusion.
The conclusion this section permits is to distinguish the statement recognizing the claim, the deposit and the report of the reason therefor, and actual receipt as separate records and determine them accordingly, and it does not permit these records to be merged into a single stage. Declaring recovery complete or recovery impossible where the necessary facts among the existence of the claim, the scope of protection, and actual payment are not confirmed also exceeds the scope of this section.
6.12이 권의 결론과 남는 물음
The preceding section summarized the matter as follows: it operates where one has the effect of service of attachment and the conditions of the monetization order, reflects the restrictions of protection and concurrence, and then confirms the actual payment materials; it is blocked where there is only attachment and no statutory conditions for collection or assignment and no actual payment, or where the relevant monetization is restricted by non-attachability or concurrence; and it remains undetermined where the necessary facts among the existence of the claim, the scope of protection, and actual payment are not confirmed. In such a state, is the third-party debtor's reply or deposit completion of recovery? This question leaves the final step of gauging by the records how far the execution has reached.
Article 237 (1) of the Civil Execution Act enumerates the matters for which an attaching creditor may apply to the court to demand a written statement from the third-party debtor (Civil Execution Act Article 237). Its wording asks separately whether the claim is recognized and, if recognized, the limit thereof; whether there is a willingness to pay and the limit thereof; the existence and type of another person's claim; and the fact of attachment by another creditor and the type of that claim. This statement is to be made by the third-party debtor in writing within 1 week from the date on which the attachment order is served, and what is confirmed is merely the third-party debtor's answer as to the existence of the claim, the willingness to pay, and the situation of concurrence. The third-party debtor's statement is not itself the fact that money has passed to the creditor.
Separately from that, the third-party debtor may deposit the full amount of the monetary claim related to the attachment (Civil Execution Act Article 248), and upon making the deposit shall report the reason therefor to the court (Civil Execution Act Article 248). The reason these two stages must be distinguished is that the state each records differs. A deposit means the state of payment into the deposit office, and receipt means the state of attribution to the creditor. A report of the reason for deposit is a procedural act notifying the court of the fact of the deposit, and the creditor's actual receipt must be confirmed by material such as a payment receipt.
If the third-party debtor's reply, deposit, and confirmation of receipt are each required, there is also great inconvenience in that delays and costs increase to such an extent that debtor protection and competing proceedings make the recovery of small claims virtually meaningless. Since the object of the report is the fact of the deposit, so long as the report does not mean receipt, if the two records are combined to judge the point of arrival, it becomes impossible to confirm at what point in time money was attributed to the creditor.
In this case, financial institution C raises the concurrence and the protected deposit portion as issues, so the portion capable of monetization is identified only after the restrictions of protection and concurrence have been reflected. In this situation, the third-party debtor's statement is material disclosing the scope of concurrence and protection, the deposit is a record leaving the state of payment into court, and the payment receipt is material showing actual receipt. However, in this case the year, amount, and accrual date are not confirmed, so it cannot be determined what amount was actually received. Where the necessary facts among the existence of the claim, the scope of protection, and actual payment are not confirmed, it remains undetermined.
Unless the report of the reason for deposit is converted into completion of receipt, the point of arrival is limited to the state confirmed by each record, and any further success of recovery or on-site effect lies outside the scope of judgment of this section. If one has priority, is participation in the procedure automatic?
Statutes referred to
Questions left open
- What materials are needed to take account of both livelihood protection and the creditor's recovery?
- What risks does the choice of an assignment order bring?
- How should statistics be broken down so that a successful attachment is not mistaken for a successful recovery?