In a case where an original copy of a final and conclusive judgment confirming the absence of the secured claim of a mortgage at the appellate trial or a reappeal against an order of seizure and assignment of a claim has been submitted, whether the order of seizure and assignment of a claim should be revoked (affirmative)

The procedure for exercising subrogation right based on a mortgage, which is issued with the submission of documentary evidence of mortgage as provided by Article 273(1) of the Civil Execution Act without any separate title, is the one in which the seizure and assignment order of a claim in lieu of the mortgaged property is issued, and the provisions of Articles 49 subparag. 1 and 50 of the Civil Execution Act shall apply mutatis mutandis as well as the provisions of Article 266(1)3 and 266(2) of the Civil Execution Act shall apply as well as the provisions of cancellation of procedures for exercising a security right under Article 266(1)3 and (2) of the Civil Execution Act, so in substance, where a final and conclusive judgment confirming the absence of a secured claim of a mortgage corresponding to the cancelled document as provided by each of the above provisions, and where an original and conclusive judgment confirming the absence of a secured claim of a mortgage, which is the basis of a seizure and assignment order, has been submitted in the appellate trial or the pending trial

Article 49 Subparag. 1, 50(1), 266(1)3 and (2), 273, and 275 of the Civil Execution Act; Articles 342 and 370 of the Civil Act

Supreme Court Order 2003Ma1806 Decided July 9, 2004 (Gong2004Ha, 1507) Supreme Court Order 2005Ma231 Decided October 27, 2005

Re-appellant

Gwangju District Court Order 2006Ra50 dated July 27, 2006

The order of the court below is reversed and the decision of the first instance is revoked. The application for the seizure and assignment order of this case is dismissed.

The grounds of reappeal are examined.

An original copy of the judgment of the appellate court revoking a judgment on which a provisional execution has been declared, which forms the basis of a seizure and assignment order, falls under the documents of cancellation of execution prescribed in Articles 49 subparagraph 1 and 50 (1) of the Civil Execution Act. Thus, in case where the original copy of the judgment revoking a judgment on which a provisional execution has been declared in the appellate trial or the appellate trial on the claims seizure and assignment order has been submitted, such appeal shall be accepted and the assignment order of claims shall be revoked (see Supreme Court Order 2003Ma1806, Jul. 9, 2004; Supreme Court Order 2005Ma231, Oct. 27, 2005; Supreme Court Order 2005Ma231, Oct. 27, 2005; Supreme Court Order 2005Ma274, Oct. 27, 2005; Supreme Court Order 203Da1674, supra, the procedure for exercising subrogation rights under Article 2 of the Civil Execution Act.

According to the records, the creditor who was a mortgagee of each real estate of this case was issued an order of seizure and assignment of the claim of this case on January 20, 2006 as the exercise of the subrogation right on the claim for expropriation compensation of the above real estate, and the re-appellant brought a lawsuit of demurrer against the creditor on the ground that the above collateral security obligation became extinct due to repayment of the above collateral security obligation, and brought a lawsuit of demurrer against the creditor on the ground that the above collateral security obligation was extinguished due to repayment, and brought an objection against the creditor through an immediate appeal and reappeal against the assignment order of this case, and filed an authentic copy after obtaining a final judgment on the confirmation of existence of the collateral security obligation of this case, and according to the above legal principles and facts acknowledged, according to the above legal principles and facts, the seizure and assignment order of this case should be revoked, so the order of the court below that maintained the attachment and assignment order

Therefore, the order of the court below is reversed, and this case is sufficient for the Supreme Court to directly render a judgment, and thus, it is revoked, and the above application for seizure and assignment order is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)