With respect to the case of application for provisional seizure against real estate between the respondent and the non-applicant 2, the Seoul Central District Court 2005Kadan6351, the provisional seizure decision made October 24, 2005 by the above court shall be revoked.

2. All costs of the lawsuit shall be borne by the respondent.

The same shall apply to the order.

According to the records, the following facts are recognized:

A. The registration of ownership transfer was completed on May 13, 1987 with respect to the real estate listed in the separate sheet (hereinafter “instant real estate”).

B. On October 24, 2005, the respondent filed an application for provisional seizure against the non-applicant 2 as Seoul Central District Court 2005Kadan6351, and the above court rendered the provisional seizure decision on October 24, 2005 (hereinafter “the provisional seizure decision of this case”), and on October 25, 2005, the provisional seizure entry registration of this case was completed.

C. However, the deceased non-applicant 3’s heir Nonparty 1 (the non-applicant for the decision of the Supreme Court) and 4 filed a claim with the Seoul Central District Court 2006Kahap10132 for the registration of ownership transfer based on the return of unjust enrichment as to their inheritance shares by asserting that the non-applicant 3 trusted the instant real estate to the non-applicant 2, and the above court rendered a judgment accepting the claims of the non-applicant 1 and 4 on October 9, 2007. Accordingly, on February 3, 2012, the registration of ownership transfer based on the return of unjust enrichment was completed to the non-applicant 1 and 4 on October 9, 2007.

D. In addition, the applicant filed a claim for the registration of ownership transfer on the ground of the return of unjust enrichment with respect to the respective inheritance shares of the above inheritors, among the instant real estate, on behalf of the inheritors, as national tax creditors against ten other than 5,6,7, etc. who are the remaining inheritors of Nonparty 3, the applicant filed a claim for the registration of ownership transfer on December 18, 2009. Accordingly, on February 3, 2012, the above court rendered a judgment accepting the claim of the applicant on December 18, 2009. On February 3, 2012, the registration of ownership transfer was completed on the portion of 39/195 shares out of the instant real estate to Nonparty 5, the applicant and Nonparty 6, and the share of 26/195 shares out of the instant real estate to Nonparty 7 on December 18, 209, respectively.

E. On February 7, 2012, the applicant completed the attachment registration as to each portion of the instant real estate, i.e., non-applicant 1, etc. among the instant real estate, with national tax claims against non-applicant 1, 4, 5, 6, and 7 (hereinafter “non-applicant 1, etc.”).

F. On August 12, 2009, the respondent filed a lawsuit on the merits of the provisional seizure of this case against the non-applicant 2, the Seoul Central District Court 2009Gahap91434, and rendered a judgment in favor of the respondent on April 8, 2010 that “the non-applicant 2 shall pay the respondent KRW 1.6 billion and delay damages,” and the above judgment became final and conclusive around that time.

G. The applicant filed an application with the court of first instance on November 14, 2013 for the revocation of the provisional seizure decision of this case on the ground that the respondent, the creditor of the provisional seizure, did not file a lawsuit on the merits for three years after the provisional seizure of this case was executed. The court of first instance rendered a decision of the court of first instance on December 19, 2013 rejecting the applicant’s application of this case on the ground that the applicant does not constitute an interested party of the provisional seizure of this case.

2. The appellant's assertion and judgment

A. Summary of the grounds for appeal

Since the applicant has a legal interest in the provisional seizure of this case, there is a standing to seek the revocation of provisional seizure.

B. Determination

1) As to the eligibility for applicants

Article 288, Paragraph 1, Item 3 of the Civil Execution Act provides that when no lawsuit on the merits has been filed for three years after provisional seizure was executed, a debtor of provisional seizure and interested persons may file an application for revocation of provisional seizure.

On the other hand, the transferee of the object of the preservative measure who acquired the real right to oppose the preservative measure after the execution of the preservative measure has the eligibility to file an application for cancellation of the decision on the preservative measure due to changes in circumstances (see Supreme Court Decision 2004Da50235 delivered on September 22, 2006, etc.), and the third person who is entitled to exercise the subrogation right may file an application for cancellation of the preservative measure on behalf of the debtor of the preservative measure (see Supreme Court Order 93Ma165 delivered on December 27, 1993).

According to the above legal principles, it is reasonable to view that the non-applicant 1 et al. constitutes an interested party who can seek revocation of the provisional seizure of this case against the respondent as the special successor who succeeded to part of the real estate of this case, and the applicant is also an interested party.

Therefore, the respondent's above assertion that there is no qualified applicant is without merit.

2) Whether the provisional attachment of this case can be revoked

If a creditor of provisional attachment fails to institute a lawsuit on the merits for three years after the execution of provisional attachment, the debtor of provisional attachment or interested party may request the revocation thereof, and upon the expiration of the period, the requirements for revocation shall be completed, and the subsequent lawsuit shall not take effect to exclude the revocation of provisional attachment even after the lawsuit on the merits is filed (see Supreme Court Decision 9Da3787 delivered on October 26, 199).

As to the instant case, the Defendant filed a suit on the merits from October 25, 2005, which had been three years since the execution date of the decision of provisional seizure of this case, on August 12, 2009, which was the execution date of the provisional seizure of this case, and the decision of provisional seizure of this case was changed in circumstances to cancel the provisional seizure, and the provisional seizure of this case must be cancelled in accordance with Article 288(1)3 of the Civil Execution Act.

In regard to this, the respondent asserted that there was a complicated legal relationship on the registry due to the circumstances in which the respondent was in a foreign country and the relatives surrounding the real estate of this case, and the prior security rights and prior provisional dispositions have been established, and thus, the respondent did not institute a lawsuit on the merits. However, the validity of revocation of provisional seizure cannot be ruled out

3. Conclusion

If so, the provisional attachment order of this case should be revoked, but the first instance court's decision is unfair with different conclusions, so it is revoked, and it is so decided as per Disposition by cancelling the provisional attachment order of this case.

[Attachment Omission of List of Real Estate]

Judge Lee Young-jin (Presiding Judge)