[2] In a case where the registration of provisional seizure is cancelled due to the sale of real estate in the auction procedure, whether the new extinctive prescription is run from the time when the cause for interruption of prescription by provisional seizure terminates (affirmative in principle), and in a case where the dividends are distributed to the creditor of provisional seizure in the distribution procedure after the payment of the sale price and the amount of dividends is deposited, whether

[2] The provisional seizure is to preserve a compulsory execution, and when the real estate is sold in the auction procedure, it becomes void for the purpose of preserving the execution of the real estate. The provisional seizure creditor is sufficient if the provisional seizure creditor can receive the amount of distribution when the creditor of the provisional seizure obtains an executive title by exercising his/her right against the debtor in the future by paying dividends corresponding to his/her position and depositing the amount of distribution to the creditor of the provisional seizure. Therefore, it is reasonable to view that the cause of suspension is terminated when the provisional seizure registration that can be deemed that the creditor continues to exercise his/her right by the provisional seizure is cancelled, unless there are special circumstances, such as where the distribution procedure is conducted before the provisional seizure registration is cancelled due to the sale of the real estate in the auction procedure and the distribution schedule becomes final and conclusive. Therefore, it is reasonable to view that the provisional seizure creditor continues to exercise his/her right as the creditor of the deposit (the distribution procedure after the payment of the proceeds from the provisional seizure cannot be deemed that the creditor of the provisional seizure continues to exercise his/her right as the creditor of the deposit).

1. Article 168 of the Civil Act provides for provisional seizure as the cause of interruption of extinctive prescription because the creditor may be deemed to have exercised his right by provisional seizure. Since the provisional seizure continues to exist during the effectiveness of preservation for execution by provisional seizure, the interruption of prescription by provisional seizure shall be deemed to continue during the duration of preservation for execution by provisional seizure (see Supreme Court Decision 200Da1102 delivered on April 25, 200, etc.).

On the other hand, the creditor of the provisional seizure registered prior to the registration of the decision on commencing auction in the auction procedure against the real estate shall receive a distribution from the proceeds of sale (Article 148 subparagraph 3 of the Civil Execution Act), the amount of distribution against the claim of the creditor of the provisional seizure shall be deposited (Article 160 (1) 2 of the same Act), and the registration of provisional seizure by the creditor of the provisional seizure shall be entrusted with the cancellation registration of the court administrative officer, etc. when the proceeds of sale are paid with the burden of the real estate that the purchaser did not take over

As above, a provisional seizure is to preserve a compulsory execution, and if the real estate is sold in the auction procedure, it becomes invalid for the purpose of preserving the execution of the real estate, and the provisional seizure creditor may receive the amount of distribution when the creditor of provisional seizure obtains an executive title by exercising his/her right against the primary debtor by depositing the distribution amount after paying dividends corresponding to his/her position and depositing the amount of distribution to the creditor of provisional seizure. Therefore, the interruption of prescription by provisional seizure shall not continue to have the effect of the interruption of prescription by provisional seizure as a creditor of provisional seizure, unless there are special circumstances such as where the distribution procedure takes place before the cancellation of the registration of provisional seizure after the sale of the real estate in the auction procedure and the distribution schedule against the creditor of provisional seizure becomes final and conclusive.

2. A. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

(1) The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) received from the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) a provisional attachment order attached to the above land and the above factory building (hereinafter “the instant real estate”) on May 12, 2004, on the ground, including the land owned by the Plaintiff, and completed construction on October 2003, by making it possible to construct a new factory on the ground, including the land owned by Jincheon-gun, Jincheon-gun, Jincheon-gun (hereinafter “the Plaintiff”). The provisional attachment registration was completed on May 12, 2004 on the instant real estate (hereinafter “instant provisional attachment”). The provisional attachment registration was completed on May 12, 2004 by making the Plaintiff the claim for construction cost of KRW 620 million against the Plaintiff as the preserved claim.

(2) The real estate of this case was sold in the auction procedure of real estate auction commenced at the Cheongju District Court, 2004tata, 18951, which was the senior mortgagee on the real estate of this case, and the sale price was paid on September 30, 2005. The registration of provisional seizure of this case by the defendant was cancelled due to the sale due to the above voluntary auction on November 4, 2005. The distribution schedule was prepared in the distribution procedure that the defendant received dividends of KRW 96,726,031 as the creditor of provisional seizure, and the amount of dividends was deposited.

(3) On January 5, 2012, the Plaintiff filed a lawsuit against the Defendant for confirmation of the existence of the obligation for the instant construction cost, and the Defendant filed a counterclaim against the Defendant for the payment of KRW 200 million as part of the claim for the instant construction cost, on February 20, 2012, claiming the existence of the claim for the instant construction cost, and on April 13, 2012.

B. Based on the aforementioned factual basis, the lower court determined that the Defendant’s claim for the construction price of this case constitutes a claim for a contractor’s construction work under Article 163 subparag. 3 of the Civil Act; the period of extinctive prescription has three years; the claim for the construction price of this case has expired on October 2003 after the completion of the construction work; and the Defendant’s provisional attachment of this case’s real estate was interrupted since the provisional attachment registration of this case was revoked, and the extinctive prescription has newly run from November 5, 2005, the following day after the provisional attachment registration of this case was revoked; however, it is apparent that the Defendant submitted a written reply claiming the existence of the claim for the construction price of this case and filed the counterclaim of this case has expired three years thereafter; thus

C. Although the reasoning of the judgment below is somewhat insufficient, the judgment of the court below is just in accordance with the legal principles as seen earlier, and there is no error by misapprehending the legal principles as to the effect of interrupting prescription by provisional seizure or the termination of the cause of interrupting prescription.

3. Therefore, the appeal is dismissed, 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)