예금채권으로 된 압류금지채권에 대한 압류 및 상계에 관한 소고

A Study on the Prohibition of Set-offs and Seizure of Nongarnishable Bank Account

The Judgment Creditor(hereinafter, ‘Creditor’) may force any property belonged to the Judgment Debtor(hereinafter, ‘Debtor’) to be sold upon public auction on his or her own choice. Hence Creditor also may as garnish any right to Debtor's wage or bank deposit as he or she can attach Debtor's tangible assets. However, certain personal property or right to credit(right to ask payment) are exempt from garnishment to protect disadvantaged people who scraped a living with these assets. The problem arises when Creditor tries to seize account where fulfillment of nongarnishable obligation, namely non-seizable money, is deposited. In Korea, The Court consistently held that Creditor can seize or levy bank account where nongarnishable amount of money is deposit. The Court reasons that the nongarnishable nature will be cease to exist where nongarnishable right is merged into garnishable right by making a deposit into account. because it is practically impossible to differentiate nongarnishable from garnishable. The Court suggest that the Debtor may apply for revocation of seizure or change of seized amount, then it will protect the Debtor upon considering the legislative purpose of listing nongarnishable rights. The reasoning of the Court may be logically right but not practically. It is too conceptual to achieve the public purpose of protecting the socially-disadvantaged. Most of them have never been legally educated enough to know that they should apply for revocation to the Court. Furthermore, it is practically impossible for them to be relieved under current Korean scheme in some cases, because the Debtor cannot apply for revocation after the balance is turned over to the Creditor through Bank Levy. Namely, the Court would issue seizure of bank account and bank levy at the same time in practice, and the Debtor may be in lack of time for application. Another problems arises where the Bank is both a Creditor and a Debtor. The Korean Commentators have not shown an interest on this problem, however, the situation goes serious where the Creditor Bank set-offs its Credit with Debt. Unlike execution of court judgment, the exercise of the right of set-off is very easy thanks to its informality; The bank would just say set-off, ant that is it. Hence, the purpose of protecting the poor can more easily be detoured under this circumstances. So, I hereby suggest the protection though amendments of applied Acts will be best resolution. If it takes time, the Court should apply its interpretation more leniently. Hence, it will be better off, if the court may interpret nongarnishable nature is maintained where it is not practically impossible to differentiate nongarnishable from garnishable.