[제3자이의][공1982.9.15.(688),742]
Provisional seizure of a ship based on a claim with a maritime lien (negative)
Even if the damage claim due to the loss of the ship's cargo has a lien on the ship, the creditor may exercise the right to demand an auction against the ship under Article 861 (2) of the Commercial Act and receive the preferential repayment of the above claim from the auction proceeds by exercising the right to demand an auction without a title of debt. Thus, barring special circumstances, provisional attachment execution shall not be conducted against the ship
Articles 788 and 861(2) of the Commercial Act; Article 697 of the Civil Procedure Act
Supreme Court Order 76Ma195 Dated June 24, 1976
Roging Cambodia (Attorney Song Jae-chul, Counsel for the plaintiff-appellant)
No. 300,000
Seoul Trust Bank, Inc.
Seoul High Court Decision 79Na2670 delivered on August 25, 1980
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The defendant's attorney's grounds of appeal are examined.
Point 1, 2,
According to the reasoning of the judgment of the court below, the court below determined that the defendant's claim for provisional attachment against the non-party 1 was not affected by the plaintiff's non-party 6's non-party 1's non-party 1's non-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6's claim for damages against the plaintiff's non-party 6-party 1's non-party 6-party 6-party 6-party.
Point 3,
According to the records, the non-party, who is the captain of the vessel of this case, delegated the authority to issue this case's bill of lading (refer to 1 to 11 of No. 7) to the agent of the above non-party Emeras, and the defendant, who is the consignee of this case, issued a bill of lading and recognized the fact that he was the holder of the above bill of lading. Since the defendant was the bona fide holder of the bill of lading, the plaintiff did not make any judgment as to the plaintiff's assertion that he was liable for damages on the bill of lading. However, even if the plaintiff is liable for damages on the bill of lading as seen above, the court below did not have any grounds to be subject to the execution on this case's ship, which is the plaintiff's property, based on the provisional attachment and preservation decision on the Tmeras, the charterer, and therefore, the omission of judgment on the above point does not affect the conclusion of the judgment.
Therefore, the defendant's 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.
Justices Kang Jong-young (Presiding Justice)