[1] The standard time to determine whether a preservative measure application constitutes duplicate applications

[2] Where the purport of Article 288(1)3 of the Civil Execution Act and the provisional disposition constitute grounds for revocation of provisional seizure under Article 288(1)3 of the Civil Execution Act, and the creditor applies again for provisional disposition of the same contents after the occurrence of the grounds for revocation, the case where the necessity for preservation can be recognized

[1] Article 259 of the Civil Procedure Act concerning double filing of a preservative measure is prohibited to apply mutatis mutandis to double filing of a preservative measure. In such cases, whether an application for a preservative measure constitutes duplicate applications shall be determined based on the time when the examination of the application for a preservative measure is completed, and where an objection against a preservative measure is filed, the standard for market price of the trial is

[2] Article 288 (1) 1 of the Civil Execution Act provides that provisional attachment may be revoked in cases where "the reason for provisional attachment has ceased to exist or other circumstances have changed." Article 288 (1) 3 of the same Act provides that provisional attachment may be revoked even in cases where "the principal lawsuit has not been filed within three years after the provisional attachment was executed" (hereinafter "reasons 3"), and this provision is also applicable mutatis mutandis to the provisional attachment procedure under Article 301 of the same Act. In cases where a creditor has renounced or lost his/her intention to preserve the property after the provisional attachment was rendered, provisional attachment may be revoked because he/she falls under "where circumstances have changed," which is the reason under subparagraph 1, in which the creditor may be deemed to have renounced or lost his/her intention to preserve the property, and the reason under subparagraph 3 of the same Article provides for the reason for revocation of provisional attachment.

The purpose of the provisional disposition is to ensure that the creditor does not stay only in the preservation of the claim until the right relationship is finally realized, and that the creditor can promptly conclude the legal relationship by going through the procedure of collecting and satisfaction of the claim, and if the creditor neglects it, the debtor can escape from the limitation caused by the provisional disposition.

In light of the contents and purport of the provisions of the Civil Execution Act, in cases where the provisional disposition falls under subparagraph 3 and the creditor applies again for the same provisional disposition after the cause for revocation occurred, the existence or absence of the necessity of preservation should not be determined on the same basis as the first provisional disposition application. In full view of the relationship between the creditor and the debtor, changes in circumstances after the execution of the preceding provisional disposition, and other circumstances, the necessity of preservation can be recognized only in cases where the creditor cannot be deemed to have renounced or lost his/her intent for preservation in spite of special circumstances where the creditor cannot be deemed to have renounced or lost his/her intent for preservation after three years have passed since the execution of the preceding provisional disposition.

[1] Article 259 of the Civil Procedure Act / [2] Article 288 (1) of the Civil Execution Act / [1] Articles 288 (1) 1 and 301 of the Civil Execution Act

[2] Supreme Court Order 2013Ma1412 Decided March 24, 2016

Creditors

The debtor

Daegu District Court Order 2017Ra10085 dated November 6, 2017

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the ground of reappeal as to duplicate applications

A. Article 259 of the Civil Procedure Act concerning double filing of a preservative measure is applied mutatis mutandis to an application for a preservative measure. In such cases, whether an application for a preservative measure is duplicate shall be determined based on the time the examination of the application for a preservative measure is completed, and if an objection against a preservative measure is filed, it shall be based on the market price of the lawsuit filed.

B. The record reveals: (a) the creditor applied for a provisional injunction against the provisional injunction against the transfer of ownership on each of the instant real estate owned by the debtor as a preserved right; and (b) on the same day, the provisional injunction was issued on December 26, 2013; and (c) on the same day, the registration of such provisional injunction was completed; and (d) the debtor applied for a provisional injunction against the change in circumstances on January 4, 2017; and (e) the creditor filed an application for provisional injunction against the debtor on January 9, 2017, while filing a lawsuit against the debtor on January 6, 2017; (c) the creditor filed an application for provisional injunction against the debtor on February 14, 2017; and (d) the debtor filed an objection against the provisional injunction on February 14, 2017; and (e) the court below rejected the debtor’s decision on January 27, 2017.

According to this, the decision of the court below as well as at the time of the decision of the court of first instance is clear that the decision to revoke the prior provisional disposition of this case has already become final and conclusive. Therefore, the application for provisional disposition of this case cannot be deemed unlawful as it constitutes a duplicate application. The ground for reappeal

2. As to the ground of reappeal regarding whether to permit re-application after revocation of the preceding provisional disposition

A. Article 288(1)1 of the Civil Execution Act provides that provisional attachment may be revoked on the “when the reason for provisional attachment ceases to exist or when other circumstances have changed.” Article 288(1)3 of the same Act provides that provisional attachment may be revoked even in the case of “when a principal lawsuit has not been filed within three years after the provisional attachment was executed” (hereinafter “reasons 3”), and this provision is also applicable mutatis mutandis to the provisional attachment procedure under Article 301 of the same Act. In a case where there are circumstances that the creditor has renounced or has lost his/her intent to preserve the same after the provisional attachment was rendered, provisional attachment may be revoked on the ground that “when the circumstances have changed,” which is the reason under subparagraph 1, constitutes “when the creditor has renounced or has lost his/her intention to preserve the same.” The reason under subparagraph 3 is provided for the grounds for provisional revocation.

The purport of the provisional disposition is to preserve an urgent and provisional right until the right relationship is finally realized, so that the creditor does not stay only in preserving the claim, and to promptly conclude the legal relationship by going through the procedure of collecting and satisfaction of the claim, and where the creditor neglects this, the debtor can escape from the limitation caused by the provisional disposition (see Supreme Court Order 2013Ma1412, Mar. 24, 2016).

In light of the contents and purport of the provisions of the Civil Execution Act, in cases where the provisional disposition falls under subparagraph 3 and the creditor applies again for the same provisional disposition after the cause for revocation occurred, whether it is necessary to preserve the provisional disposition should not be determined on the same basis as the first provisional disposition application. In full view of the relationship between the creditor and the debtor, the change in circumstances after the execution of the preceding provisional disposition, and other circumstances, the necessity to preserve the creditor can be recognized only when special circumstances are acknowledged that the creditor cannot be deemed to have renounced or lost his/her intent of preservation even if the creditor did not institute a lawsuit on the merits after three years have passed since the execution of the preceding provisional disposition. However, if the cause of subparagraph 3 occurred, it is because the creditor has expressed his/her intent of preservation or lost his/her intention in view of the typical reason for the waiver or loss of his/her intention of preservation

B. Examining the reasoning of the order of the court below in light of the above legal principles, it is inappropriate for the court below to determine that the application for provisional disposition in this case cannot be deemed impermissible solely on the ground that the creditor filed an application for provisional disposition in this case and filed a lawsuit on the merits. However, in light of the reasoning of the order of the court below and all the circumstances such as the relationship between the creditor and the debtor, etc. recognized by the records, the special circumstances are acknowledged that the creditor cannot be deemed to have renounced or lost his intent to preserve the case even if the creditor did not file a lawsuit on the merits for three years after the execution of the provisional disposition in this case. Thus, the court below did not err by violating the Constitution, law, order or

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)