[물품대금][공2010하,2098]
In case where a provisional seizure has been made against a debtor's monetary claim for the preservation of a monetary claim and the execution has been revoked at the creditor's request, whether the effect of interruption of extinctive prescription by provisional seizure ceases retroactively (affirmative)
In a case where a provisional seizure has been made with respect to a monetary claim of a debtor for the purpose of preserving a monetary claim, and the subsequent execution has been revoked upon the creditor’s request, the effect of interruption of extinctive prescription by the provisional seizure shall retroactively lapse, barring any other special circumstances. Article 175 of the Civil Act provides that the provisional seizure shall not have the effect of interrupting extinctive prescription “when the provisional seizure is revoked upon the creditor’s request.” Barring any other special circumstances, an application for cancellation of execution or cancellation of execution by a creditor which was made after the execution of a provisional seizure constitutes withdrawal of an application for execution, and barring any other special circumstance, it is reasonable to view that the interruption of extinctive prescription is extinguished by the act of objectively expressing that the creditor has no intent to exercise his/her right, and that
Article 175 of the Civil Act
Seoul High Court Decision 201Na1448 decided May 1, 201
Defendant
Seoul High Court Decision 2010Na7975 decided May 28, 2010
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
In a case where a provisional attachment was made against a debtor's monetary claim for the purpose of preserving the monetary claim, and the subsequent execution was revoked at the creditor's request, barring any other special circumstances, the interruption of extinctive prescription by the provisional attachment shall retroactively lapse, barring any other special circumstance. Article 175 of the Civil Act provides that the provisional attachment shall not have the effect of interrupting extinctive prescription. Article 175 of the Civil Act provides that the provisional attachment "when the creditor's request is revoked at the request of the right holder," the interruption of extinctive prescription shall be null and void. Barring any other special circumstance, a claim for revoking the execution or cancelling the execution by the creditor which was made after the provisional attachment constitutes the withdrawal of the application for execution, and it is reasonable to view that the interruption of extinctive prescription becomes null and void
The lower court determined that, based on the instant claim, the Plaintiff applied for a provisional attachment against the Defendant’s deposit claim against the third debtor on May 23, 2007 and served on the third debtor at that time the provisional attachment order was rendered on May 23, 2007, but later, the Plaintiff applied for the cancellation of provisional attachment execution and served the Defendant with the notice of cancellation of provisional attachment execution, and thus, the interruption of the extinctive prescription due to the said provisional attachment retroactively ceased to have expired. Accordingly, the lower
According to the above legal principles, such judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the grounds for the interruption of extinctive prescription or the cancellation of
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 Kim Ji-hyung (Presiding Justice)