According to the records of this case, the following facts are recognized.

A. On September 30, 2004, the applicant filed an application for provisional attachment of the above amount out of the construction cost of KRW 15,400,000 with respect to the appellant, with a view to preserving the enforcement of the claim of KRW 15,40,00,00 with respect to the third obligor group (hereinafter the third obligor).

B. On October 1, 2004, the Gwangju District Court ordered the applicant to deposit KRW 6,000,000 for the appellant, and to submit a document concluding a payment guarantee entrustment contract with the insurance amount of KRW 3,000,000 out of the above amount.

C. On October 4, 2004, the applicant deposited KRW 3,000,00 for the appellant (hereinafter this case’s deposit number No. 8503) with the deposit officer of the Gwangju District Court (hereinafter this case’s deposit number No. 2004), and paid a deposit amount of KRW 3,00,000 to the appellant as the insured between the Seoul Guarantee Co., Ltd. (Securities No. 660-052-2004030892). On October 5, 2004, the Gwangju District Court provisionally seized the said deposit and guarantee insurance amount of KRW 15,40,000 to the third obligor by the appellant as security.

D. On November 2, 2004, the applicant filed a lawsuit claiming the payment of the construction cost of KRW 15,400,000 and damages for delay (hereinafter in this case) with the appellant as the defendant on November 2, 2004, the Gwangju District Court 2004Gapo29624 case. The Gwangju District Court decided to recommend performance to the appellant on November 9, 2004, and the appellant filed an application for designation of the date for pleading on December 22, 2004 and the date for pleading was designated on January 14, 2005, but the applicant was absent on the first date for pleading and on February 4, 2005, the first lawsuit in this case was concluded as withdrawn on March 5, 2005.

E. On April 6, 2005, the applicant filed a lawsuit seeking payment of KRW 15,400,000 and damages for delay (hereinafter the second lawsuit in this case) with the appellant as the defendant on April 6, 2005. The Gwangju District Court rendered a decision of performance recommendation (hereinafter the "decision of performance recommendation in this case") on May 11, 2005 to the appellant on May 25, 2005, and the appellant filed an objection with the appellate court in charge of the first lawsuit in this case on May 25, 2005. The second lawsuit in this case was concluded as a final decision of performance recommendation in this case on May 26, 2005.

F. On September 9, 2005, the applicant filed an application for the cancellation of the instant security on the ground that the grounds that the grounds for the cancellation of the instant security arose upon the confirmation of the instant performance recommendation decision with the appellant as the respondent. On September 14, 2005, the court of first instance rendered a decision to revoke the security of the instant deposit as the instant case on September 14, 2005.

2. The appellant's assertion;

The appellant subcontracted part of the construction work that was contracted by the garnishee to the applicant. The third debtor claims the repair of defects due to the defective construction work of the applicant, and the appellant is no longer able to pay the construction price to the applicant, and the appellant is no longer able to pay the construction price. When the first lawsuit of this case is concluded to be withdrawn because the appellant failed to appear twice on the date for pleading of the first lawsuit of this case, and the appellant filed the second lawsuit of this case with the same content and filed an objection to the previous court, the decision of performance recommendation of this case was confirmed and the decision of the court of first instance that revoked the security of the deposit of this case was unlawful even if the grounds for security were not extinguished.

3. Determination

Pursuant to Article 280(2) and (3) of the Civil Execution Act, a security to be provided to an applicant for provisional seizure prior to the court's decision of provisional seizure means a security for a debtor's damage caused by the creditor's unlawful or unjust provisional seizure. A creditor for provisional seizure may file an application for revocation of a security by proving that the cause for security has ceased pursuant to Articles 127 and 125(1) of the Civil Procedure Act. The extinction of a security cause for provisional seizure refers to a case where a claim for damages caused by provisional seizure has not existed or where there is no possibility of damage. In general, in case where a creditor has been given a favorable judgment in favor of a creditor in this case, the security cause has ceased

However, according to Article 5-7 (1) of the Trial of Small Claims Act, the final and conclusive decision of performance recommendation has the same effect as the final and conclusive decision, while Article 5-8 (3) of the same Act provides that in the case of the final and conclusive decision of performance recommendation, the grounds that existed before the final and conclusive decision of performance recommendation became final and conclusive, unlike the final and conclusive decision, may be asserted. Furthermore, when the applicant filed the first lawsuit in this case but was absent and withdrawn on the date of pleading at the second time upon the request of the appellant, the second lawsuit in this case was again brought again, and the appellant filed an objection against the decision of performance recommendation in this case with the competent court in charge of the first lawsuit as a result of the final and conclusive decision of performance recommendation in this case, as long as the appellant still contests the procedure for final and conclusive the decision of performance recommendation in this case and the existence of the preserved claim, it is probable that the grounds for performance recommendation in this case should generally be subject to the suspension of compulsory execution order by providing cash equivalent to the total amount ordered by the decision of performance recommendation in this case.

4. Conclusion

If so, the appellant's appeal of this case is reasonable, and the decision of the court of first instance shall be revoked, and the applicant's application for the cancellation of security shall be dismissed.

Judges Cho Jae-sung (Presiding Judge)