債權執行에 있어서 第3債務者의 陳述義務

Abstract

【Abstract】 Obligation of the third debtor's explanation related to the credit garnishment Kyeng Wook Kim According to § 237 subsection 1 of Korean Civil Procedure Law (referred to as KCPL below) the creditor can file an application to require the third debtor to explain four matters: whether or not he approves the credit between the debtor and the third debtor, and if he does, any limitation on payments; whether or not he intends to pay the credit, and if he does, any limitation on payments; whether or not any other creditors with preference ahead of the creditor have applied for payment, and if so, the kind of credit; whether or not any other creditor has garnished the credit between the debtor and the third debtor. The creditor is required by law to provide an explanation of these four matters within one week of receiving the court's order for the explanation. According to § 237 subsection 2 KCPL the court must deliver the court's order for the explanation to the third debtor. According to § 237 subsection 3 KCPL if the third debtor neglects to provide the explanation, the court can hold a hearing. The explanation should clarify to the creditor the likelihood of the collection because the credit garnishment is not made public and the creditor has no other ways to obtain information on whether he can collect the credit and whether there are any other creditors. In this article it is forcefully argued that in actual fact the third creditor in Korea is obligated by the law to provide an explanation and is obligated to compensate the damages which have occurred due to his slowness, refusal to respond, or incomplete or false response. The article is written in eight parts. Part I introduces the problem. Part II discusses the creditor's application to the court for an explanation by the third debtor and the issuance of an official order by the court. Part III asserts that the third debtor is legally required to provide an explanation, and discusses the time limit to provide the explanation and the problem of corrected statements. Part IV covers in detail the contents of the third debtor's explanation, including the four matters associated with § 237 subsection 1 KCPL mentioned above. After brief discussions of the effect of the explanation (Part V) and court hearings (Part VI), it is asserted in Part VII that the third debtor is required by law to compensate the damages which he caused through his slowness, refusal to respond, or incomplete or false response. Part VIII summarizes problems related to the third debtor's explanation and suggests a reform of the law.