[2] The time when the interruption of prescription by provisional seizure takes effect (=the time when provisional seizure is requested)

[3] Where investment certificates issued to members of the Construction Financial Cooperative are held by a third party, not the debtor, the method of execution of provisional seizure / In a case where the debtor provisionally seized the debtor's right to claim delivery of investment certificates against the Construction Financial Cooperative, the time when the provisional seizure takes effect (=the time when the provisional seizure order was served on the Construction Financial Cooperative), and whether the interruption of the extinctive prescription due to provisional seizure takes effect retroactively from

[2] Although Article 168 Subparag. 2 of the Civil Code provides for provisional seizure as a cause of interrupting prescription, there is no express provision as to when the interruption of prescription by provisional seizure takes effect.

According to Article 265 of the Civil Procedure Act, “judicial claim” (Article 168 subparag. 1 and Article 170 of the Civil Act), one of the causes interrupting prescription, becomes effective when a lawsuit has been brought. This recognizes the effect of interrupting prescription before an obligor becomes aware of the fact that the lawsuit has been brought by delivery of a written complaint, etc. In regard to provisional seizure, the provision of the Civil Procedure Act applies mutatis mutandis to provisional seizure, and thus, the interruption of prescription becomes effective when an application for provisional seizure is filed similar to “judicial claim”. “Provisional seizure” includes the trial procedure and execution procedure to obtain a court order of provisional seizure. This is because provisional seizure also includes a judicial claim (Article 279 of the Civil Execution Act), as well as a provisional seizure, by filing an application with the court, and notification is made to the obligor

The reason why provisional seizure is defined as the cause for interrupting prescription is because an obligee can be deemed to have exercised the right by provisional seizure.The exercise of the right by a provisional seizure obligee commences at the time of application for provisional seizure.

[3] An investment certificate issued by a construction mutual aid association to its members is a security that commends the above association's investment shares, and the provisional attachment of the above investment certificate is a provisional attachment of debt payable to order under Article 233 of the Civil Execution Act, and an execution officer shall occupy the investment certificate upon a provisional seizure order issued by the court (Article 59 (4) of the Framework Act on the Construction Industry

Meanwhile, in a case where a third party, other than the debtor of the above investment certificate, occupies the above investment certificate, the creditor may execute the provisional seizure by means of provisional seizure against the debtor's right to claim the delivery of the corporeal movables against the third party (Articles 242 and 243 of the Civil Execution Act). In this case, the provisional seizure of the right to claim the delivery of corporeal movables is, in principle, based on the provisional seizure of the monetary claim, based on the provisional seizure order and its service (Articles 223, 227, 242, 243, and 291 of the Civil Execution Act). Therefore, the provisional seizure execution of the right to claim the delivery of corporeal movables becomes effective by the provisional seizure order being served on the third party debtor.

Therefore, in case where the debtor provisionally seized the right to claim the delivery of investment certificates against the Construction Financial Cooperative, the provisional seizure shall become effective when the provisional seizure order is served on the Construction Financial Cooperative, which is the garnishee, and in this case, the interruption of the extinctive prescription due to the provisional seizure shall become retroactively effective at the time of

1. Regarding ground of appeal No. 1

A. The time to claim remuneration, which serves as the starting point of the extinctive prescription in a construction contract, shall be determined by the special agreement between the parties, if any, and shall be determined by the custom unless otherwise stipulated (Articles 65(2) and 656(2) of the Civil Act), special agreement or custom is completed.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) The Defendant entered into a contract with the Plaintiff under which the electricity and fire fighting construction (hereinafter “instant electrical construction”) and the instant fire fighting construction (hereinafter “instant fire fighting construction”) are subcontracted to the Plaintiff at KRW 33,880,000 for construction cost (hereinafter “instant subcontract”). At the time of completion of the instant construction, the Defendant agreed to pay the price after receiving the certificate of electrical and fire fighting construction from the Plaintiff.

(2) After completing the instant electrical construction on January 6, 2012, the Plaintiff delivered it to the Defendant and received a certificate of electrical construction performance from the Defendant. After completing the instant fire-fighting construction, the Plaintiff obtained a certificate of completion of fire-fighting system completion inspection from the chief of Ansan fire station and provided it to the Defendant on March 13, 2012. The instant extension construction was completed on April 6, 2012.

C. Examining the foregoing facts in light of the legal principles as seen earlier, the timing for the payment of the instant construction cost, which serves as the starting point of the statute of limitations, ought to be deemed as March 13, 2012, when the Plaintiff completed the instant construction pursuant to the agreement stipulated in the instant subcontract and issued the certificate of completion of fire-fighting systems

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, it did not err by misapprehending the legal principles on “time of payment of construction cost” and “the completion of construction work” as determined by the subcontract agreement, thereby adversely affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 2

A. Although Article 168 Subparag. 2 of the Civil Act provides for a provisional seizure as a cause of interrupting prescription, there is no express provision as to when the interruption of prescription by provisional seizure takes effect.

According to Article 265 of the Civil Procedure Act, “judicial claim” (Article 168 subparag. 1 and Article 170 of the Civil Act), one of the causes interrupting prescription, becomes effective when a lawsuit has been brought. This recognizes the effect of interrupting prescription before an obligor becomes aware of the fact that the lawsuit has been brought by delivery of a written complaint, etc. In regard to provisional seizure, the provision of the Civil Procedure Act applies mutatis mutandis to provisional seizure, and thus, the interruption of prescription becomes effective when an application for provisional seizure is filed similar to “judicial claim”. “Provisional seizure” includes the trial procedure and execution procedure to obtain a court order of provisional seizure. This is because provisional seizure also includes a judicial claim (Article 279 of the Civil Execution Act), as well as a provisional seizure, by filing an application with the court, and notification is made to the obligor

The reason why provisional seizure is defined as the cause for interrupting prescription is because an obligee can be deemed to have exercised the right by provisional seizure.The exercise of the right by a provisional seizure obligee commences at the time of a request for provisional seizure, so in this regard, the interruption of prescription by provisional seizure is retroactive to the time of a request

An investment certificate issued by a construction mutual aid association to its members is a securities that commendes the said association’s investment shares (see Supreme Court Decision 86Meu1456, Jan. 20, 1987). A provisional attachment of the said investment certificate is made by means of provisional attachment of debt payable to order under Article 233 of the Civil Execution Act, and an execution officer shall possess the investment certificate upon a provisional seizure order issued by the court (Article 59(4) of the Framework Act on the Construction Industry).

Meanwhile, in a case where a third party, other than the debtor of the above investment certificate, occupies the above investment certificate, the creditor may execute the provisional seizure by means of provisional seizure of the debtor's right to claim the delivery of the corporeal movables against the third party (Articles 242 and 243 of the Civil Execution Act). In this case, the provisional seizure of the right to claim the delivery of corporeal movables is, in principle, based on the provisional seizure of the monetary claim, based on the provisional seizure and its service (Articles 223, 227, 242, 243, 291 of the Civil Execution Act). As such, the provisional seizure of the right to claim the delivery of corporeal movables becomes effective upon the provisional seizure being served on the third party debtor (see Supreme Court Decision 93Da42757 delivered on March 25, 1994).

Therefore, in case where the debtor provisionally seized the right to claim the delivery of investment certificates against the Construction Financial Cooperative, the provisional seizure shall become effective when the provisional seizure order is served on the Construction Financial Cooperative, which is the garnishee, and in this case, the interruption of the extinctive prescription due to the provisional seizure shall become retroactively effective at the time of

B. The following facts are acknowledged according to the reasoning of the lower judgment and the record.

(1) The Defendant had one investment share in the Construction Mutual Aid Association, ○○○○, ○○○○○○○, and △△△△△△△ (hereinafter “instant investment share”). The instant investment certificate was kept in custody by the Construction Mutual Aid Association.

(2) On February 9, 2015, the Plaintiff filed an application for provisional attachment against the Defendant’s right to claim delivery of the instant investment certificate with the Daejeon District Court’s 2015Kadan347 as the secured claim against the instant construction payment claim. On March 24, 2015, the said court issued a provisional attachment order upon the said provisional attachment application (hereinafter “instant provisional attachment order”) and served the construction mutual aid association on March 26, 2015.

C. Examining the foregoing facts in light of the legal principles as seen earlier, the provisional seizure order of this case, which the Plaintiff seized the right to claim delivery of the instant investment certificate in order to preserve the claim for the construction cost of the instant case, becomes effective as it was served on the Construction Mutual Aid Association, which is the garnishee, on March 26, 2015, and the interruption of the extinctive prescription due to provisional seizure becomes effective retroactively from February 9, 2015, when the application for provisional seizure was filed. The Plaintiff’s payment date of the claim for the construction cost of this case was March 13, 2012, and thus, from that time to February 9, 2015, which was three-year short-term extinctive prescription under Article 163 subparag. 3 of the Civil Act, the extinctive prescription of the instant claim for the construction cost of this case

The judgment of the court below to the same purport is just, and the judgment below did not err by misapprehending the legal principles on the validity of the interruption of prescription due to provisional attachment against the claim for delivery of investment certificates.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)