The case holding that it is necessary to preserve by provisional seizure even if a title of debt exists;

Even if there is a title of debt with executory power, there is a special circumstance in which it is impossible to immediately perform compulsory execution with the title of debt, and thereafter, it is necessary to preserve the execution based on the title of debt in order to prevent the damage caused by the completion of compulsory execution only when it is possible to perform compulsory execution with the said title of debt.

Article 697 of the Civil Procedure Act

Applicant

Respondent

Seoul Central District Court (74Ka1408) of the first instance court

The petitioner's appeal is dismissed.

Costs of appeal shall be borne by the applicant.

The original judgment shall be revoked.

The judgment that the above court revokes the provisional seizure order made on January 31, 1973 with respect to the provisional seizure application case against immovables 73Ka1699 between the claimant and respondent, and the declaration of provisional execution.

If the respondent obtained a provisional attachment order for the above real estate on January 31, 1973 from the Seoul Civil District Court 73Ka169 and the above court made a provisional attachment order for the above real estate on the same day without any dispute between the parties, 2 (No. 1), 3 (No. 2) and 4 (No. 4) of the lawsuit, and 9 (No. 72) of the above real estate shall be deemed to have been filed for the above provisional auction order for the above real estate on the 19th anniversary of the above provisional auction order on the 19th anniversary of the above provisional auction order. The Respondent shall not be entitled to the above provisional auction order for the above real estate on the 19th anniversary of the above provisional auction order on the 19th anniversary of the above real estate. The Respondent shall also be entitled to the above provisional auction order for the above real estate on the 5th anniversary of the above provisional auction order on the 19th real estate, and the above Respondent shall also have the effect of the provisional auction order on the above 10th judgment.

After the provisional attachment order was rendered on January 31, 1973 as Seoul District Court 73Ka1669 on the real estate upon request of the respondent and the respondent received the order of the above court on May 9, 1974 upon request of the applicant and did not bring a lawsuit on the merits within the prescribed period. As such, the above provisional attachment order on the real estate is asserted that the above provisional attachment order on the real estate should be revoked due to the lapse of the period of filing the lawsuit. As above, the above provisional attachment order on the real estate is a claim with an executory title and the above provisional attachment order on the real estate which the respondent had taken into account as the preserved claim at the time of the provisional attachment. When the applicant files an application for the order of this case, the above provisional attachment order demanding the debtor to receive the title of debt on the secured claim at the time of the provisional attachment becomes effective after the decision of compulsory commencement of the provisional attachment order on the real estate had already been issued on the basis of the above title of debt. Thus, the above applicant's application for provisional attachment order and its cancellation order cannot be accepted.

The next claimant asserts that the provisional seizure decision on the real estate is to preserve the execution of the construction deposit claims with the name of debt under the final judgment. This is an illegal provisional seizure decision with no need to be preserved claims. Thus, if the creditor of provisional seizure already holds a final and conclusive judgment or other debt titles, it is in principle possible to conduct compulsory execution immediately. Therefore, even if there are a title of debt with executory power, it is not necessary to take any protective measure such as provisional seizure, etc., but it is necessary to preserve execution based on the above title of debt in order to prevent damages arising from execution only when it becomes possible to enforce compulsory execution immediately after the provisional seizure is made under the title of debt, and since the respondent has the title of debt at the time of the above request for provisional seizure, even if there is no request for provisional seizure claims, the claimant who already held the above provisional seizure claim under the title of debt at the time of the above request for provisional seizure cannot seek the cancellation of provisional seizure as well as the above grounds for revocation of provisional seizure.

Therefore, the applicant's application for the revocation of provisional attachment is without merit, and it is dismissed. Accordingly, the judgment of the same court is just and the applicant's appeal against it is without merit, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition.

Judges Doz. (Presiding Judge)