[담보취소결정][공1983.1.1.(695),45]
of the claim for the return of the guaranteed deposit for the suspension of compulsory execution by all the creditors of the claim for the cancellation of the security by subrogation
Since it is obvious by its own decision that the decision of suspending compulsory execution against the judgment of the provisional execution ordering court of this case exists until the original decision of the court below is declared, the order of the court below accepting the application is null and void since the order of suspension becomes null and void as of April 29, 1982, which was declared by the court below. Accordingly, the creditor received the order of seizure and assignment as to the right to claim the return of the re-appellant's deposit under the name of debt with the above provisional execution ordering court's order of provisional execution, and the creditor who acquired the right to claim the return of deposit under the above provisional execution ordering order of this case applies for cancellation
Articles 474 and 564 of the Civil Procedure Act
Daesung Construction Co., Ltd., Counsel for the defendant-appellee
Daegu High Court Order 82Ka173 dated June 21, 1982
The reappeal is dismissed.
The grounds of reappeal are examined.
The guarantee deposit for the suspension of compulsory execution against a judgment with a declaration of provisional execution is a theory that it is intended to secure damages in case the creditor suffers damages due to the suspension of compulsory execution.
However, according to the records, since the decision of the court below to suspend compulsory execution of this case at the court below is obvious that it exists until the decision of the court below on the merits is delivered, the order of suspension of compulsory execution of this case at the court below is null and void by its own decision, and therefore, the validity of the order of suspension of order of this case at the court below is null and void. Accordingly, the creditor obtains an order of seizure and assignment of the claim against the right to request the return of deposit of the re-appellant in the name of debt of the court below which declared the above provisional execution order, and thereafter the creditor files an application for cancellation of security by subrogation of the re-appellant, who is the secured creditor who acquired the right to request the return of deposit under the above provisional execution order, and the decision of the court below which admitted the application is proper, and the precedent of the lawsuit which cited the lawsuit
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young