The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Preservation measures, such as provisional attachment or provisional disposition, include the confirmation of whether the right to be preserved exists or not, shall be entrusted to the lawsuit on the merits, and shall be borne by the creditor by the vindication. Thus, in a case where the execution creditor loses the lawsuit on the merits after such execution, it shall not be presumed that the execution creditor was intentional or negligent in the damage suffered by the debtor due to the execution of the preservative measure, but where there exists "special circumstances", the presumption of intention or negligence may be reversed.

(see, e.g., Supreme Court Decision 2009Da82046, 82053, Feb. 11, 2010). 2. Reviewing the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts. A.

The Defendant reported the right of retention to the auction court (Seoul Western District Court D) upon the commencement of the auction procedure against the above officetels while exercising the right of retention on the claim for the purchase price of the officetel in this case.

B. On July 11, 2005, E agreed to obtain a loan from a financial institution when the Defendant renounced the right of retention, and pay half of the proceeds from sale to the Defendant. The Defendant submitted a report of waiver of the right of retention to an auction court around that time.

C. On July 19, 2005, E received a successful bid for the instant officetel, and on November 21, 2005, paid 2.8 billion won to the Defendant in return for the waiver of the right of retention, and agreed again to the third party, etc. not to relocate or trust the instant officetel without the Defendant’s consent.

However, on November 22, 2005, E borrowed KRW 2 billion from the Plaintiff, and around that time, borrowed KRW 500 million from F and completed the registration of transfer of ownership in its name on November 23, 2005, while the first priority beneficiary is the Plaintiff and the second priority beneficiary with respect to the above officetels between the Korea Asset Trust and the Korea Asset Trust on the same day.