Whether a creditor’s provisional attachment or seizure of a part of one claim has been suspended only a part of the claim, and the remainder may continue to have effect of provisional attachment or seizure on the remaining part of the claim without extinguishment by prescription (affirmative)

The purpose of provisional seizure and seizure by a creditor is to obtain the amount of future claims by attaching and seizing valid parts of a claim subject to provisional seizure and seizure among one claim, barring special circumstances, such as the provisional seizure and seizure by designating a specific part of a claim subject to provisional seizure and seizure. Therefore, provisional seizure and seizure for a part of a claim subject to provisional seizure are limited to a valid part of a claim, and as long as the valid part of a claim remains, the effect of provisional seizure and seizure shall continue to exist. Therefore, provisional seizure and seizure for a part of a claim. Accordingly, where the extinctive prescription for a part of a claim is suspended only, and the remaining part shall continue to extend to the remaining part of a claim without extinction of extinctive prescription.

Articles 223 and 276 of the Civil Execution Act, Article 162 of the Civil Act

The bankruptcy trustee of the bankrupt, and the intervenor succeeding to the co-litigation

Intervenor of Co-Litigation

Korea Deposit Insurance Corporation of a new comprehensive financial corporation

Han-dong Housing Association (Law Firm LLC, Attorneys Yang Jong-soo et al., Counsel for the plaintiff-appellant)

one school juristic person, university of origin and one other (Law Firm Law Firm, etc. and one other, Counsel for the plaintiff-appellant)

Supreme Court Decision 2011Da56187, 56194 Decided July 25, 2013

Seoul High Court Decision 2013Na49284, 49291 decided January 9, 2014

All appeals are dismissed. The costs of appeal are assessed against the Defendants, including the part arising from supplementary participation.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the assertion of misapprehension of legal principles as to the principle of creditor equality

A. The purpose of provisional seizure and seizure is to obtain satisfaction of the amount of claims in the future by attaching and seizing valid parts of claims subject to provisional seizure and seizure among one claim, barring special circumstances, such as the provisional seizure and seizure by designating a specific part of a claim, barring any special circumstance, it is reasonable to deem that provisional seizure and seizure as to a part of a claim is an effective part of a claim, and that the valid part of a claim remains, and that provisional seizure and seizure continue to have effect. Therefore, inasmuch as the valid part of a claim remains, it is reasonable to deem that provisional seizure and seizure has continued to have effect. Accordingly, where the prescription period is suspended only for a part of the claim, and the remaining part has expired already, it shall be deemed that the effect of provisional seizure and seizure continues to extend to the remaining part

B. Based on the evidence duly admitted, the lower court rejected the Defendants’ assertion that: (a) prior to the Plaintiff’s filing of an application for a full order on the claim for the refund of the purchase price with respect to the Defendants by the Korea Deposit Insurance Corporation (hereinafter “Plaintiff”) for the Korea Deposit Insurance Corporation (hereinafter “Korea Deposit Insurance Corporation”); (b) had first taken the provisional attachment and provisional attachment in an amount of KRW 21,985,651,635 in total; and (c) at that time, the Defendant’s claim for the refund of the purchase price was valid due to the provisional attachment and lawsuit against the Defendants; and (d) thus, the above provisional attachment and provisional attachment and provisional attachment and provisional attachment and provisional attachment and provisional attachment issued by the Plaintiff (hereinafter “Plaintiff”)’s creditors cannot be deemed to be against the remaining claims for which the extinctive prescription has not expired; and (e) the Plaintiff’s filing of an application for the attachment and provisional attachment and assignment order had the effect of excluding the claims for the refund of the purchase price and the interruption of prescription; and thus, (e) accepted the remaining assignment order of the Defendants’s claim.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

The allegation in the grounds of appeal on this part is that deeming that the interruption of prescription extends to the part of the claim, such as provisional seizure, prior to the instant assignment order, is superior to the creditor of the subsequent assignment order, prior to the subsequent assignment order, and thus, is in violation of the principle of creditor equality. However, the assignment order is an execution method that substantially forms an exception to the principle of creditor equality, and the Plaintiff (ex officio) received the entire order of this case only to avoid the invalidation of the assignment order due to the combination of seizures. Therefore, the obligee of the instant assignment order cannot be deemed to have a status equal to that of the obligee, such as the prior provisional seizure. On the contrary of the instant case, when the assignment order was first and the provisional seizure and attachment was made later, the obligee becomes entitled to preferential satisfaction from the claim whose assignment order was interrupted, and thus, the obligee such as the subsequent provisional seizure cannot obtain satisfaction, and thus, in this case, the obligee becomes a creditor, such as subsequent provisional seizure, and if the assignment order competes with the prior assignment order, the obligee and the Defendants’ ground of appeal are not acceptable.

2. As to the assertion of misapprehension of the legal principle on prohibition of use of preservative measure

The lower court rejected the Defendants’ assertion that the effect of each of the above provisional seizure cannot be asserted in the instant lawsuit once the Plaintiff (Withdrawal) invoked the effect of the provisional seizure of each of the instant real estate in full gold, etc., based on the doctrine prohibiting the diversion of preservative measures, on the ground that the above assertion is not applied to other cases on the ground that, in a case where the obligee was rendered a final and conclusive judgment against the obligee in the instant lawsuit on the right to be preserved, the prohibition of the diversion of preservative measures would not be useful for the preservation of other rights including where the pertinent preservative measure is based on the right to be preserved and the claim is based

Even according to the defendants' assertion, the plaintiff (Withdrawal) asserts the validity of the interruption of prescription due to each of the above provisional seizure, not the use of each of the above provisional seizure for preserving the right to be preserved, and thus, the above judgment of the court below is just and there is no error of law by misapprehending the legal principles on the prohibition of the diversion of preservative disposition, contrary to what is alleged in

Supreme Court Decision 93Meu1259 Decided August 2, 1994 cited in the ground of appeal is different from this case and it is not appropriate to invoke this case.

3. Conclusion

All appeals are dismissed, and the costs of appeal are assessed against the losing party, including the portion arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)