Whether the final decision on performance recommendation constitutes a reason for cancellation of security provided for in Article 125(1) of the Civil Procedure Act, which applies mutatis mutandis to security for provisional seizure pursuant to Article 23 of the Civil Execution Act (affirmative)

Article 125(1) of the Civil Procedure Act, which applies mutatis mutandis to a security for provisional seizure under Article 23 of the Civil Execution Act, ceases to exist as the grounds for revocation of security, means not only the absence of the grounds for providing the security, but also the absence of the grounds for continuing the existence of the security after it, or where there is no possibility of incurring damage in the future. The provisional attachment obligee's failure to cause damage in the future is a case where it is certain that the damage would not occur due to the acceptance of the legitimacy of the preservative measure, such as provisional attachment, which is already executed, as the creditor has obtained a final and conclusive judgment in favor of the principal lawsuit. Thus, Article 5-7(1) of the Trial of Small Claims Act provides that the final decision of performance recommendation also has the same effect as a final and conclusive judgment. Thus, even if the decision of performance recommendation becomes final and conclusive, it

Article 23 of the Civil Execution Act; Article 125(1) of the Civil Procedure Act; Article 5-7(1) of the Trial of Small Claims Act

Re-appellant

other party corporation

Gwangju District Court Order 2005Ra166 dated February 24, 2006

The order of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

Article 125(1) of the Civil Procedure Act, which applies mutatis mutandis to a security for provisional seizure under Article 23 of the Civil Execution Act, ceases to exist as the grounds for revocation of security, means not only the absence of the grounds for providing the security, but also the absence of the grounds for continuing the existence of the security after it, or where there is no possibility of incurring damage in the future. The provisional attachment obligee's failure to cause damage in the future due to the acceptance of the justification of the preservative measure, such as the provisional attachment already executed, as the creditor obtained a final and conclusive judgment in favor of the principal lawsuit, constitutes a case where it is evident that the damage would not occur in the future. Thus, Article 5-7(1) of the Trial of Small Claims Act provides that the final decision of performance recommendation also has the same effect as the final and conclusive judgment. Thus, even if the decision of performance recommendation becomes final and conclusive, it is reasonable to interpret

However, according to the records, the Re-Appellant filed an application for provisional attachment of the other party's claim for construction price against the other party's Sung-gun as the preserved right, and received the provisional attachment order by providing security such as deposit of 3,00,000 won in accordance with the order of security issued by the court below. After that, the Re-Appellant filed a lawsuit for the claim for construction price to the court below by designating the other party as the defendant, and the above case was concluded by the final decision of performance recommendation as of May 26, 2005. Thus, although the ground for security of the provisional attachment of this case was extinguished by the final decision of performance recommendation with the same effect as the final decision became final and conclusive, the court below revoked the first instance court's order ordering the cancellation of security on the ground that it is difficult to view the ground that the ground for security cancellation was extinguished as the final and conclusive decision of performance recommendation becomes final and conclusive, and it is erroneous in the misapprehension of legal principles as to the cancellation of security, which affected the conclusion of the judgment.

Therefore, the order of the court below is reversed, and the case is 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 on the bench.

Justices Lee Kang-tae (Presiding Justice)