[담보취소][공2000.10.1.(115),1919]
Where a person holding a right to collateral has exercised his/her right and verified it after a decision to revoke collateral under Article 115(3) of the Civil Procedure Act was issued and such decision becomes final and conclusive, whether the person holding the right to collateral may maintain such decision (negative)
If a person who has the right to security exercises his/her right after a decision to revoke a security was issued pursuant to Article 115(3) of the Civil Procedure Act and such decision is confirmed, it is reasonable to interpret that the decision to revoke a security cannot be maintained as it is if the person who has the right to security gives consent to the revocation of the security. The same applies to the case where the person who has the right to security submits a document verifying the right when the right
Articles 115(3) and 475 of the Civil Procedure Act
Re-appellant
Seoul High Court Order 2000Ka83 dated March 22, 2000
The order of the court below is reversed. The application for cancellation of security in this case is dismissed.
The grounds of reappeal are examined.
Article 115(3) of the Civil Procedure Act, which applies mutatis mutandis under Article 475 of the same Act, provides that the court shall, upon the application of the person who has the right to the security, notify the person who has the right to the security, upon the application of the person who has the right to the security, to exercise his right within a given period after the completion of the lawsuit, and if the person who has the right to the security, fails to exercise his right within such period, the court may decide to revoke the security by deeming that the person who has the right to the security, has consented to the revocation of the security, but it is reasonable to interpret that if the person who has the right to the security, exercises his right before the decision to revoke the security becomes final and conclusive, it is impossible to maintain the decision to revoke
According to the records, the re-appellant, who is the person holding the security right of this case, filed a reappeal (Immediate appeal) against the decision on revocation of the security of this case, and then filed a lawsuit seeking the payment of the secured debt guaranteed by the security of this case against the person holding the security as Seoul District Court 2000GaGa90251, and submitted the evidence of such lawsuit to the party member. Thus, the re-appellant is legally exercising its right against the security of this case, and thus the order of the court below is no longer maintained.
Therefore, the order of the court below is reversed and the party members are sufficient to directly judge, and therefore, the application for cancellation of security in this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Han-gu (Presiding Justice)