According to the records, on September 22, 1997, the above court applied for provisional seizure against the land of this case against the respondent and Kim Jong-dong, Incheon District Court 97Kahap1356 for provisional seizure against the land of this case on Sep. 22, 1997. The third acquisitor of the land of this case applied for provisional seizure order on Feb. 20, 2003. On March 18, 2003, the above court ordered the respondent to file a lawsuit within 14 days from the date on which the decision was served, and submitted documents proving the continuation of the lawsuit or had already filed a lawsuit against the plaintiff on March 18, 200, "the document proving the continuation of the lawsuit shall be delivered" and the original copy of the order may not be served by the registered mail of this case as the director of the office of the respondent at the time of provisional seizure.

2. The judgment of the court below

In light of the fact that the order to file a lawsuit is a procedure incidental to a preservative measure and is merely for determining whether to maintain the preservative measure, the court below affirmed the first instance court's decision revoking the order to file a lawsuit of this case on the ground that the respondent did not submit the documents ordering the submission of the above order within the prescribed period of time on March 27, 2003, when the order to file a lawsuit of this case was delivered to the address of this case, which is the domicile at the time of provisional seizure decision, but is not sent to the address of this case because the director was not known. Accordingly, the court below affirmed the first instance court's decision revoking the provisional seizure order of this case on the ground that the respondent did not submit the documents ordering the submission of the above order within the prescribed period

3. Judgment of the Supreme Court

However, we cannot accept the above decision of the court below for the following reasons.

Article 185 of the Civil Procedure Act (see Supreme Court Order 2004Ma128, May 13, 2005) provides that the place where service is to be made may be sent in such a way as prescribed by the Supreme Court Regulations at the place where service is previously received. Thus, even if the party reported the place of service, if the service is not served on the place of service, it cannot be said that the place is "the place where service is previously served" under Article 185 of the Civil Procedure Act.

However, according to the records, the respondent in the provisional attachment procedure of this case seems to have no record of being served at the domicile of this case, so it cannot be viewed that the domicile of this case constitutes a previous place of service under Article 185 of the Civil Procedure Act, and therefore it is difficult to view that the order of this case was served lawfully.

Nevertheless, the court below's maintenance of the first instance court's decision revoking the provisional attachment order of this case on the premise that the order of this case was legally delivered to the respondent is erroneous in the misapprehension of legal principles as to dispatch and delivery under Article 185 of the Civil Procedure Act, which affected the conclusion of the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon (Presiding Justice)