[1] In a case where a provisional seizure under the provisions of the law was made legally but the provisional seizure was revoked due to the degree of the time limit for filing a lawsuit, whether the interruption of the extinctive prescription under Article 175 of the Civil Code has no effect (negative)

[2] Whether the interruption of prescription by provisional seizure continues while the preservation of provisional seizure remains effective (affirmative)

[3] The case affirming the judgment of the court below which held that in case where provisional seizure was revoked on the grounds of the lapse of the period for filing a lawsuit after the provisional seizure decision, the extinctive prescription of the claim was interrupted due to the provisional seizure, and the provisional seizure was revoked

[1] Article 175 of the Civil Code / [2] Article 168 subparagraph 2 of the Civil Code, Article 178 (1) of the Civil Code / [3] Article 168 subparagraph 2 of the Civil Code, Article 175 of the Civil Code, Article 178 (1) of the Civil Code

[2] Supreme Court Decision 200Da11102 Decided April 25, 2000 (Gong2000Sang, 1290) Supreme Court Decision 2006Da32781 Decided July 27, 2006 (Gong2006, 1508) Supreme Court Decision 2006Da24568 Decided March 27, 2008

Plaintiff

Defendant (Attorney Park Jong-chul, Counsel for defendant-appellant)

Seoul Western District Court Decision 2010Na3708 decided October 14, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

On the first ground for appeal

Article 175 of the Civil Act provides that "the interruption of extinctive prescription shall not be effective in a case where provisional seizure is revoked upon the request of the right holder or because it does not comply with the provisions of the Act," and this is because such reason constitutes an act objectively expressing that the right holder of the provisional seizure did not intend to exercise his right, or an act cannot be deemed to have exercised his right from the beginning. Thus, in a case where provisional seizure was made lawful provisional seizure under the provisions of the Act, but the provisional seizure is revoked due to the lapse of the period for filing a lawsuit,

In addition, the provisional seizure which provides as a cause of interrupting prescription is due to the fact that the right holder exercised his right by the provisional seizure, while the preservation of execution by the provisional seizure remains effective, it shall be deemed that the exercise by the creditor of the provisional seizure continues to exist. Therefore, the interruption of prescription by the provisional seizure shall continue for the period during which the preservation of execution by the provisional seizure remains effective (see Supreme Court Decisions 2000Da1102, Apr. 25, 2000; 2003Da26082, Oct. 23, 2003; 2006Da32781, Jul. 27, 2006, etc.).

The judgment of the court of first instance cited by the court below, based on the plaintiff's claim of this case against the defendant, applied for a provisional attachment of each real estate owned by the defendant on September 10, 1997, and the defendant's application for the order of provisional attachment was accepted, but the provisional attachment was revoked on August 12, 2009 on the ground that the plaintiff did not file a lawsuit within the period of application for the order of lawsuit, but the provisional attachment was revoked on August 12, 2009, but the period of extinctive prescription of the claim of this case was suspended due to the provisional attachment and the provisional attachment was revoked due to the lapse

According to the above legal principles, such determination by the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of misapprehending the legal principles as to the grounds for suspending extinctive prescription or the validity of revoking provisional seizure due to the lapse of the period

We cannot accept the different grounds of appeal, and it is not necessary to revise the Supreme Court's precedents, as otherwise alleged in the grounds of appeal.

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 Yang Sung-tae (Presiding Justice)