[권리행사최고및담보취소][미간행]
In a case where: (a) A deposited security for the suspension of compulsory execution against a judgment with a declaration of provisional execution; (b) and (c) filed an order for the seizure and assignment of claims against the deposit money of the above security based on the original copy of the judgment with executory power; (c) and (d) A filed an immediate appeal against B, a garnishee, and the obligor A; (b) and (c) B filed a written opinion with the purport that the court’s peremptory notice of the exercise of rights was being prepared to find the security money through the seizure and assignment order as above, the case accepting the application for cancellation of security on the ground that: (a) even when the seizure order becomes effective, A may file an application for cancellation of security; and (b) B’s application for seizure and assignment order cannot be deemed a legitimate exercise of rights against the court’s peremptory notice; and
Articles 125, 500(1), 501, and 502(3) of the Civil Procedure Act; Articles 227 and 229 of the Civil Execution Act
Applicant
Respondent
Supreme Court Decision 2014Kaga645 Decided January 14, 2015, the security deposit of KRW 8,000,000 deposited by the deposit officer of the Daejeon District Court No. 244 Decided January 14, 2015 is revoked.
According to the records, the respondent applied for an order of seizure and assignment on April 10, 2015 (hereinafter “instant order of seizure and assignment”) against the right to claim the deposit of security recorded in the order based on the executory exemplification of the judgment in Daejeon District Court Decision 2015TTT 4707, Daejeon District Court 2014Na7221 (former), and the above court issued an order of seizure and assignment of claims on April 13, 2015 (hereinafter “instant order of seizure and assignment”). The original ruling was served on the Republic of Korea, the debtor on April 13, 2015, the debtor on April 17, 2015, and the applicant filed an immediate appeal against the above order of seizure and assignment of claims on April 24, 2015, and the respondent submitted a written opinion against the exercise of the right to exercise the right to the Supreme Court that the secured claim is prepared to find security money through the aforementioned order of seizure and assignment.
Examining these facts in light of the relevant legal principles, an order of seizure, among the instant order of seizure and assignment, takes effect on April 13, 2015, on which the original copy of the decision was served to the garnishee, but the assignment order has not yet become final and conclusive, so the applicant may exercise his/her claim within the extent not impairing the obligee. The decision of revocation of a security is merely allowing the offerer to be placed in the status or status of recovery of the security, and does not specify the ownership of the security (see Supreme Court Order 2010Ma1367, Jan. 13, 201), but does not specify the ownership of the security (see Supreme Court Order 2010Ma1367, Jan. 13, 201). Therefore, even when the seizure order becomes effective, the applicant may file an application for revocation of the security.
In addition, the security for the suspension of compulsory execution against a judgment with a declaration of provisional execution is to secure the damage claim in a case where the creditor suffers damage due to the suspension of compulsory execution itself (see Supreme Court Order 2005Kadam9, August 2, 2005). The respondent does not exercise the damage claim due to the suspension of execution itself, but the respondent's application for the seizure and the whole order of this case by the executive title that became the object of suspension of execution cannot be deemed a legitimate exercise of the right against the peremptory notice of this court. Thus, the respondent shall be deemed to have consented to the cancellation of security
Therefore, the application for cancellation of the instant security is justified, and it is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ko Young-han (Presiding Justice)