[담보취소][공2008하,1074]
In relation to the security offered for the revocation of provisional seizure, whether the security ground for the portion exceeding the claim amount of the principal claim is extinguished solely on the fact that the creditor of provisional seizure claims only a part of the claims for provisional seizure as the principal lawsuit (negative)
The security offered to be cancelled by provisional seizure is directly secured by the claim claim indicated in the provisional seizure order, so the creditor of provisional seizure has filed a lawsuit on the merits concerning only a part of the claim for damages, which is the claim for provisional seizure, and solely based on such fact, the security ground for the portion exceeding the claim amount on the merits cannot be deemed to have ceased.
Article 125 of the Civil Procedure Act
D.com Co., Ltd. (Attorneys Doh Sang-hoon et al., Counsel for the defendant-appellant)
Reference Co., Ltd. (Law Firm Mapyeong, Attorney Lee Young-young, Counsel for the defendant-appellant)
Busan High Court Order 2008Kadam27 dated April 30, 2008
The part of the order of the court below concerning the cancellation of security is reversed and the application for cancellation of security is dismissed. All costs of lawsuit are borne by the other party.
The grounds of reappeal are examined.
The court below found that the Re-Appellant (hereinafter "the Re-Appellant") requested the payment of consolation money of KRW 100 million and delay damages, unlike the provisional attachment application, on the ground that the Re-Appellant's claim for compensation of KRW 10 billion due to the illegal act of the other party (hereinafter "the applicant for the cancellation of security") was issued a provisional attachment order on the real estate owned by the applicant for the cancellation of security, and that the applicant for the cancellation of security deposit of KRW 1 billion in accordance with the court's order for the security deposit of KRW 5 billion was cancelled pursuant to Article 288 (1) 2 of the Civil Execution Act as the applicant for the cancellation of security deposit insurance policy was submitted. However, in filing the principal lawsuit, the respondent requested the payment of consolation money of KRW 100 million and delay damages, unlike the provisional attachment application, on the ground that the remainder of the security deposit of KRW 1100 million and KRW 100 million,0000,000,000,000,000 won, which were 200.
However, since the security offered to obtain a provisional seizure is directly secured by the claim indicated in the provisional seizure order, it cannot be said that the security ground has ceased to exist solely on the ground that the provisional seizure creditor filed a lawsuit on the merits concerning only a part of the claim for damages, which is the claim for the provisional seizure in question.
Therefore, the part of the order of the court below regarding the cancellation of security is reversed and the members are sufficient to directly judge, and thus, the application for cancellation of security against this part is dismissed, and the total costs of lawsuit are borne by the other party. It is so decided as per Disposition by the assent of all participating
Justices Park Ill-sook (Presiding Justice)