[1] Whether it constitutes a change in circumstances as stipulated in Article 288 of the Civil Execution Act to obtain a dismissal judgment on the grounds of the Civil Procedure Act in a lawsuit on the merits of a preservative measure (negative)

[2] In a case where the existence of the right to be preserved for provisional seizure becomes final and conclusive in the principal lawsuit, whether such provisional seizure can be useful for the preservation of other rights (negative)

[3] The case holding that the provisional attachment order that the damage claim directly owned by the Party A against Party B is not useful to preserve the damage claim of Party B against Party B, and that Party B is not useful to preserve the damage claim of Party B

[1] In a case where an applicant for preservative measures has been ruled against him on the grounds of substantive law in a lawsuit on the merits of preservative measures, changes in circumstances as stipulated in Article 288 of the Civil Execution Act may be deemed to exist, and in such a case, the usefulness of the lawsuit on the merits is not permitted, but in a case where he has been ruled dismissed on the grounds

[2] In the case where the right to be preserved for provisional seizure has become extinct or it becomes final and conclusive in the merits lawsuit, provisional seizure according to changes in circumstances as stipulated in Article 288 of the Civil Execution Act shall become grounds for revocation, and in this case, the provisional seizure shall not be useful for the preservation of the right to be preserved and other rights.

[3] The case holding that the provisional attachment order that the damage claim directly owned by the Party A against Party B is not useful to preserve the damage claim of Party B against Party B, and that Party B is not useful to preserve the damage claim of Party B

[1] Article 288 of the Civil Execution Act / [2] Article 288 of the Civil Execution Act / [3] Article 288 of the Civil Execution Act

[1] Supreme Court Decision 94Da42211 delivered on August 25, 1995 (Gong1995Ha, 3267) / [2] Supreme Court Decision 74Da2151 delivered on April 27, 1976 (Gong1976, 9126), Supreme Court Decision 93Meu1259 delivered on August 12, 1994 (Gong194Ha, 2302)

Applicant (Attorney Lee Hong-hoon, Counsel for defendant-appellant)

Lee Jae-chul et al. and 59 others

Busan High Court Decision 2004Kahap2 delivered on August 26, 2004

The part of the judgment of the court below against the applicant (appointed party), 1, 2, 3, 4, and 5 shall be reversed, and this part of the case shall be remanded to the Busan High Court.

1. In a case where an applicant for preservative measures has been ruled against him on the grounds of substantive law in a lawsuit on the merits of preservative measures, changes in circumstances as stipulated in Article 288 of the Civil Execution Act may be deemed to exist, and in such a case, the usefulness of a lawsuit on the merits is not permitted, but in a case where he has been ruled dismissed on the grounds of legal procedure in the lawsuit on the merits, such changes in circumstances cannot be deemed to exist generally (see Supreme Court Decision 94Da4211 delivered

On the other hand, in the case where the preserved right of provisional seizure has become extinct or has become final and conclusive in the case of the merits lawsuit, provisional seizure according to changes in circumstances as stipulated in Article 288 of the Civil Execution Act shall become grounds for revocation, and in this case, the provisional seizure shall not be useful for preserving the preserved right and other rights (Supreme Court Decision 74Da2151 delivered on April 27, 1976, Supreme Court Decision 93Meu1259 delivered on August 12, 1994, etc.).

2. According to the reasoning of the judgment below, the court below rejected the request of the 2nd 5th Respondents who are members of the 2nd 5th Do Housing Association (hereinafter referred to as the "Housing Association") and the 2nd Respondents who are members of the 2nd 5th Do Housing Association (hereinafter referred to as the "applicants") for provisional attachment as to each of the real estate listed in the separate sheet in Busan District Court's branch 2001Kahap325, and rejected the request of the 3rd Respondents for provisional attachment on May 7, 2001 (hereinafter referred to as the "provisional attachment decision of this case"). The 3th Respondents who are members of the 2nd 5th Do Housing Association and the 2nd 5th Do 5th Do 14th Do 2001Ga504, the 2nd 5th Do 20130, which decided that the 2nd 3th 2013 of the above decision was unlawful.

3. However, we cannot agree with the judgment of the court below for the following reasons.

According to the records, the judgment in the Busan High Court case No. 2003Na10193, which is the main lawsuit of the provisional seizure of this case, becomes final and conclusive on October 1, 2004, and the respondent's damage liability for the applicant and the designated parties who had been unable to file the application of the provisional seizure of this case becomes final and conclusive. According to the above legal principles, in the case where it becomes final and conclusive in the lawsuit on the merits that the preserved right of the provisional seizure of this case does not exist, the provisional seizure of this case becomes grounds for revocation of provisional seizure due to changes in circumstances as stipulated in Article 288 of the Civil Execution Act. In this case, in principle, the provisional seizure of this case cannot be useful

However, at the appellate court of the lawsuit on the merits of the provisional seizure of this case, the respondent's claim additionally issued as a preliminary claim by the housing association against the applicant and the designated parties in order to preserve the respondent's claim for the return of additional charges to the housing association. This is not identical to the creditor's claim that the respondent had originally failed to pay to the applicant and the designated parties. Thus, the provisional seizure order of this case where the respondent has directly owned the applicant and the designated parties as the preserved right cannot be viewed as being useful to preserve the damage claim that the housing association has against the applicant and the designated parties.

Therefore, the provisional attachment decision of this case shall be deemed to have resulted in a change of circumstances no longer necessary to maintain it as the respondent did not have any preserved claim which was initially set out in the lawsuit on the merits, and even if the housing association has the right to return additional charges to the housing association after the resolution of the general meeting of the members of the housing association, and even if the housing association has the right to claim damages against the applicant and the designated parties, the provisional attachment decision of this case shall not affect the above conclusion as long as it is not useful and useful.

Nevertheless, the court below determined that there is no change in circumstances that can cancel the part of the decision of provisional seizure of this case against the applicant, the designated person 1, the designated person 2, the designated person 3, the designated person 4, and the designated person 5. In so doing, there is an error of law by misapprehending the legal principles on change in circumstances in the cancellation of provisional seizure under Article 288 of the Civil Execution Act, which affected the conclusion of the decision, and therefore, the ground of appeal pointing this out has merit.

4. Therefore, the part of the judgment of the court below against applicants 1, 2, 3, 4, and 5 shall be reversed, and this 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 on the bench.

Justices Zwon-won (Presiding Justice)