[가압류취소청구사건][고집1973민(2), 220]
The same extent as the preserved right of provisional seizure and the subject matter of the lawsuit on the merits
In the application for provisional attachment, the right to be preserved and the subject matter of a lawsuit on the merits must not be identical, but at least the identity should not be lost in the basis of the claim, and even if the cause of the claim is somewhat different, there should be room for the conflict between the two.
Article 696 of the Civil Procedure Act
Applicant
Respondent
Seoul and Criminal District Court Decision 72Ka517 Decided 72Ka517)
1. Revocation of the original judgment;
2. The provisional attachment decision made on January 29, 1971 on the provisional attachment case between the respondent and the applicant shall be revoked.
3. All the costs of lawsuit shall be borne by the respondent.
The decision like the order was sought.
Comprehensively taking account of the evidence Nos. 1, 2 and the whole purport of the pleadings, the respondent applied for provisional seizure order against the applicant as Seoul Civil and Criminal District Court Suwon Branch of 71Ka77 on January 24, 1971. The respondent was determined as the due date for payment of KRW 1,749,000 on January 18, 1971 and lent to the applicant as of February 18, 1971, the respondent had reached the above application in order to obtain preservation of the execution of the claim, and the mobilization accepted it and recognized the fact that the respondent made the provisional seizure order against the applicant as of this case for the purpose of securing the claim execution against KRW 1,749,000 on January 18, 1971.
The Claimant asserts that there is no fact that the Respondent has lent the same amount to the Claimant as indicated in the above provisional attachment order, and therefore there is no right to be preserved, and the Respondent's application of the Claimant's complaint against the Claimant for the entire amount claim No. 72 Gohap136, which the Respondent raised against the Claimant according to the Respondent's application of the Claimant's complaint, is not a lawsuit on the merits of this case.
In full view of the contents of evidence Nos. 2-1, 2, 3, and 3-1, 2, 3, 4, and 5-1, 3-2, 3, 4, and 5 of the evidence Nos. 2-1, 749,00 won against the applicant, and the respondent has monetary claims against the applicant. The respondent is ordered to pay 90,000 won out of the above monetary claims against the applicant of the applicant, and the respondent is ordered to pay 90,000 won out of the above monetary claims against the applicant of the applicant, and the respondent has received the order to pay 90,000 won, and there is no evidence to regard this differently.
Therefore, it is difficult to find out whether the lawsuit claiming the whole amount becomes the principal case according to the application for provisional seizure of this case.
In the case of a request for provisional seizure (the right to be preserved) and the claim in the case of the merits of the provisional seizure (the right which is the object of the lawsuit) are not required to be identical at the same time, but at least the same time, the basis of the claim should not be lost, and even if the cause of the claim is somewhat superior, the claim in the merits should be identical to that in the case of the request for provisional seizure. In this case, even if the cause of the claim is somewhat superior, the respondent has to change the cause of the claim in the merits and thus, the respondent has lent the money to the applicant. (In this case, the respondent asserts that the applicant is subrogated to the applicant who borrowed the money, but there is no evidence to recognize it), the cause of the claim in this case has been fully paid to the applicant, so it cannot be seen as identical to that of the other party, so the respondent cannot be seen as having applied the original case to the applicant for provisional seizure, and therefore, the respondent cannot be seen as having any other ground for admitting the claim in this case as the original judgment.
Judges Kim Hong (Presiding Justice)