[1] Where a provisional attachment creditor claims excessive value than the amount of the claim and the provisional attachment is decided according to its value, whether his/her intention or negligence is presumed to have been presumed in the principal lawsuit (affirmative with qualification) within the scope of the part verified as having no right to preserve the claim (affirmative with qualification)

[2] The case holding that where a provisional seizure creditor has lost a lawsuit on the merits and his negligence is presumed, the presumption of negligence by the provisional seizure creditor shall not be reversed merely because the provisional seizure debtor was convicted as a crime of occupational breach of trust, and the facts and progress of the lawsuit are complicated

[3] In a case where the debtor's deposit of a civil monetary claim with an unfair preservative measure was not received at the time, or when the debtor applied for the suspension of compulsory execution and deposited the money as security was invalidated, the scope of ordinary damages resulting therefrom

[1] Where a provisional attachment is decided according to the value of the claim because the application for provisional attachment claimed excessive value than the amount of the claim, the intention or negligence of the creditor of the provisional attachment shall be presumed to have no preserved right in the judgment on the merits within the extent of the part verified to have no preserved right. However, the intention or negligence shall

[2] The case holding that the presumption of negligence by a provisional seizure creditor on the ground that the provisional seizure creditor was convicted of a crime of occupational breach of trust, or that the provisional seizure creditor was complicated merely because the provisional seizure creditor was convicted of a crime of occupational breach of trust, or the progress of the facts and litigation was complicated, shall not be reversed, in the case where the provisional seizure creditor lost the lawsuit on the merits and was presumed to have been negligent.

[3] In a civil monetary claim, the amount of ordinary damages arising from the non-payment of the claim amount on time due to an unfair preservative measure shall be equivalent to the interest on the claim amount at the rate of five percent per annum as stipulated in the Civil Code. If this claim is deposited, the amount equivalent to the difference between interest and interest on the deposit amount shall be deemed as losses. The same applies to the case where the execution is invalidated when an application for the suspension of compulsory execution was made and the money was deposited as a collateral in order to escape provisional execution. Thus, even if the debtor suffered damages equivalent to the amount equivalent to the interest on the finance for the suspension of the financial interest and interest on the security of the compulsory execution that could have been gained by using the money actually provisionally seized due to the unlawful preservative measure, this shall be deemed as special damages only if the creditor or provisional execution creditor knew or could have known it.

[1] Article 750 of the Civil Act, Article 696 of the Civil Procedure Act / [2] Article 750 of the Civil Act, Article 696 of the Civil Procedure Act / [3] Articles 393 and 763 of the Civil Act, Articles 201 and 696 of the Civil Procedure Act

[1] [3] Supreme Court Decision 92Da8453 delivered on September 25, 1992 (Gong1992, 2990), Supreme Court Decision 95Da34095, 34101 delivered on December 12, 1995 (Gong1996Sang, 376) / [1] Supreme Court Decision 77Da294 delivered on June 7, 197 (Gong1977, 10155), Supreme Court Decision 94Da6529 delivered on April 14, 1995 (Gong195Sang, 1842), Supreme Court Decision 98Da52513 delivered on April 13, 199 (Gong199, 874) / [3] Supreme Court Decision 196Da196519 delivered on April 16, 199

Plaintiff (Attorney Lee Dong-sung et al., Counsel for plaintiff-appellant)

Hansung Saemaul Depository (former name before the change: 1-dong Seongbuk Saemaul Depository) (Attorney Yang Sung-dong et al., Counsel for the defendant-appellant)

Daegu High Court Decision 97Na1342 delivered on December 3, 1997

The part of the lower judgment against the Defendant is reversed. The relevant part of the case is remanded to the Daegu High Court.

The grounds of appeal and supplementary grounds of appeal are examined together.

On the first ground for appeal

Of the Defendant’s preservative measures, the lower court acknowledged the purport that the provisional seizure of real estate (the claimed amount KRW 114,920,00) executed around June 25, 1991, exceeds KRW 13,965,00,00, which is the sum of the principal and interest of KRW 13,965,000, which is the sum of installment savings deposits embezzled by the Plaintiff, embezzled by the Plaintiff, does not have the right to be preserved, notwithstanding that the provisional seizure of real estate (the claimed amount KRW 391,80,000) executed on January 3, 1992 did not have the right to be preserved, and that the provisional seizure of claims (the claimed amount KRW 816,220,00) delivered to the garnishee on October 23, 192, did not have the right to be preserved, despite the absence of the right to be preserved.

Furthermore, the court below held that, although preservative measures, such as provisional seizure, are executed by the court's trial, the existence and scope of a substantive claim shall be entrusted to the judgment on the merits lawsuit and shall be borne by the creditor by the vindication, so if the creditor has lost the lawsuit on the merits after the execution thereof, it shall be presumed that the creditor has intentionally or negligently committed on the part of the debtor as to the damage incurred by the debtor due to the execution of such preservative measures, and therefore, the defendant shall be liable for the damage incurred by the plaintiff due to the execution of such improper preservative measures,

In addition, the court below rejected the defendant's assertion that there was no negligence on the part of the defendant, on the grounds that there was no negligence on the part of the defendant, on the grounds that the defendant's assertion that there was no negligence on the part of the defendant in making each of the above preservative measures, since the claim for damages filed by the court of first instance and the appellate court for the principal lawsuit of each of the above preservative measures was complicated, and the facts were not only complicated, and the first instance and the appellate court reached a different conclusion at least ten times each time, and the evidence submitted by the plaintiff and the defendant was also neglected.

Where a provisional attachment is decided in accordance with the value of the claim by asserting excessive value of the claim in the application for provisional attachment, the intention or negligence shall be presumed in the scope of the part verified as having no right to preserve the claim in the judgment on the merits, but the intention or negligence shall be deemed to be denied in the event of special circumstances (see Supreme Court Decision 95Da34095, 34101, Dec. 12, 1995).

As a result of the facts and records duly admitted by the court below, the part other than the above 13,965,00 won which was finally quoted in the lawsuit on the merits of each of the above provisional seizure claims and the damages for delay thereof shall be presumed to be the negligence of the defendant in the execution of such provisional seizure, since there is no right to be preserved, or no right to be preserved has been instituted in the lawsuit on the merits.

Furthermore, there are circumstances such as the conclusion at the appellate court as to the above claim amount of 71,00,000 won among the above claim amount of provisional seizure claimed by the defendant. However, the presumption of negligence by the defendant should not be reversed solely on the ground that the plaintiff was convicted of the crime of occupational breach of trust, or that the fact-finding and the progress of the lawsuit are complicated, since the judgment became final and conclusive in the lawsuit on the merits, it is the damage incurred by the defendant's arbitrary appropriation of performance, unlike the designation of the order of distribution, and the damage caused by the defendant's arbitrary appropriation of performance, which is ultimately attributable to the defendant.

In the same purport, the judgment of the court below which recognized the establishment of tort on the ground that the remaining part of the claim amount of each provisional seizure, excluding the part which the defendant won in the lawsuit on the merits, constitutes an unfair preservative measure conducted without the right to be preserved, is just and there is no error in the misapprehension of legal principles as to the scope of wrongful preservative measure or negligence by failing to exhaust all necessary deliberations or in violation of

The ground of appeal on this point is rejected.

On the second ground for appeal

The court below acknowledged on December 4, 191 that the land of this case was executed by the Korea Land Development Corporation (hereinafter below) and announced the compensation to receive the compensation for the land as incorporated into the housing site development project district in Daegu Dolcheon-2 District, which was executed by the Korea Land Development Corporation (hereinafter below), but the non-party Corporation, which anticipated difficulties in acquiring the land due to the provisional attachment and the establishment registration of neighboring mortgage, applied for a ruling to the Central Land Expropriation Committee on October 22, 1992. The non-party Corporation deposited 3,575,299,90 won for the provisional attachment of the defendant's own real estate on the same day (the deposit was stated in the form of the plaintiff's refusal to receive the compensation) and determined that the defendant is liable for compensation for damages suffered by the plaintiff due to the execution of each of the above provisional attachment, since the scope of compensation for damages by the defendant is excessive.

However, it is difficult to accept the fact-finding and decision of the court below. According to the evidence adopted by the court below, in particular Eul evidence No. 4-2, since the plaintiff asserted that the land compensation publicly announced by the non-party Corporation was low, the non-party Corporation did not enter into a purchase agreement, and the land in this case was also subject to a request for land expropriation to the Central Land Expropriation Committee. In addition, the land in this case was also subject to non-party Nos. 1, 2, 3, 7 land in the name of the defendant, No. 4, 6, and 8 land in the name of non-party No. 5 land, and each establishment registration of mortgage in the name of the non-party Hellin Agricultural Co., Ltd. in the name of the non-party No. 5 land was not cancelled. Thus, since the non-party Corporation and the plaintiff did not enter into a provisional seizure other than the above provisional seizure and the plaintiff's refusal to enter into a purchase agreement and the plaintiff's non-party Nos. 4-2 did not actually receive the above damages.

Nevertheless, the court below acknowledged that the plaintiff did not reach a consultation with the non-party Corporation was due to the defendant's unfair provisional seizure, and that the plaintiff suffered losses equivalent to the interest on the claim amount of unfair provisional seizure due to the plaintiff's failure to receive the above land compensation at the time. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the scope of damages arising from an erroneous provisional seizure or a misunderstanding of legal principles as to the scope of damages arising from a causal relationship with the unfair provisional seizure. Thus, the ground of appeal pointing this out is justified.

On the third ground for appeal

The court below determined that the statutory interest rate in civil liability for damages caused by unfair preservative measures is a rate of delay recognized as a matter of law in the event of delay in the performance of a monetary obligation, while the content of the damages claimed by the plaintiff is financial damages suffered due to suspension of the use of the funds equivalent to the amount equivalent to the amount equivalent to the damages claimed by the plaintiff, and that at least the amount of time deposit in commercial banks can obtain income from financial negligence (liability) equivalent to the rate of fixed deposit in commercial banks, barring any special circumstances, shall be determined in conformity with the generally accepted rule of society. The court below calculated the amount of damages by deducting the interest accrued to the deposit from the amount based on the interest rate in commercial banks. Meanwhile, the court determined that the amount equivalent to the interest on the financial interest in the amount borrowed or disbursed by the debtor for the guarantee of the suspension of a provisional execution is damages to be exempted from a provisional execution, and calculated the amount calculated by applying the interest rate in a fixed deposit in commercial banks to the amount equivalent to the rate revoked

However, in a civil monetary claim, the amount of ordinary damages arising from the non-payment of the claim at time due to an unfair preservative measure is equivalent to the amount of interest at the rate of five percent per annum as to the amount of the claim. If this claim is deposited, the amount equivalent to the difference between interest and interest on the deposit shall be the amount of damages (see Supreme Court Decision 90Da17606, Mar. 8, 1991). The same applies to the case where the execution is invalidated because the application for the suspension of compulsory execution was made to escape the provisional execution, and the execution was invalidated. Thus, even if the plaintiff actually suffered damages as cited by the court below, it shall be deemed as a special damage, only if the defendant, the creditor or provisional execution creditor, knew or could have known it.

However, in calculating the scope of damages caused by the above unfair provisional seizure and provisional execution, the court below acknowledged that the damages incurred by the plaintiff's financial interest or funds deposited for the purpose of providing security for the suspension of compulsory execution, which the plaintiff could have obtained by using the amount of unfair provisional seizure, are ordinary damages without proper deliberation as to whether the plaintiff knew or could have known of such damages, and as to whether there were circumstances that the plaintiff knew or could have known of such damages, the court below erred in the misapprehension of legal principles as to the scope of damages caused by the above provisional seizure and the damages incurred by the provisional execution. Thus, the ground of appeal pointing this out is justified.

Therefore, the part of the judgment of the court below against the defendant shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)