[1] The degree of identity of the right to the provisional attachment decision and the subject matter of the lawsuit on the merits

[2] Whether a person may change his/her right to be preserved in the procedure of raising an objection against provisional seizure (affirmative)

[1] Article 276 of the Civil Execution Act / [2] Articles 23(1), 276, 277, and 283 of the Civil Execution Act; Article 262(1) of the Civil Procedure Act

[1] [2] Supreme Court Decision 95Da45224 delivered on February 27, 1996 (Gong1996Sang, 1105) / [1] Supreme Court Decision 81Da1223, 81Meu91 delivered on March 9, 1982 (Gong1982, 433), Supreme Court Decision 9Da11328 delivered on March 13, 2001 (Gong201Sang, 858), Supreme Court Decision 2006Da35223 Delivered on November 24, 2006 (Gong207Sang, 51) / [2] Supreme Court Decision 81Da1221, 1222, 81Meu989, 909, 1982)

Re-appellant

Other Party

Seoul High Court Order 2008Ra1225 dated December 2, 2008

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds of reappeal are examined.

Unless there are special circumstances, such as that the right to be preserved in the provisional attachment decision and the right which is the subject matter of the lawsuit on the merits are not strictly identical, and the effect of the provisional attachment, insofar as the identity of the basis of the claim is recognized, shall affect the right on the merits of the lawsuit (see, e.g., Supreme Court Decision 81Da1223, 81Meu91, Mar. 9, 1982). An application for provisional attachment is an urgent necessity and is made without sufficient time to sufficiently review and determine the legal composition of the preserved right and evidence relations, barring special circumstances, such as that the application for provisional attachment is filed on the ground of the preserved right clearly without any rights, it shall be deemed that the preserved right in the grounds of the application can be changed even in the procedure of provisional attachment (see, e.g., Supreme Court Decision 81Da1221, Dec. 22, 1222, 81Meu9, 990, Mar. 9, 198

According to the records, the Re-Appellant, on October 30, 2007, entered into and delivered to the Re-Appellant a letter of commitment to pay KRW 200 million in total, including the loan amount of KRW 90 million, the return of facilities deposit of KRW 110 million, etc. (hereinafter “the letter of commitment to the payment of this case”) with the obligor's right to be compensated for the guaranteed obligation claim amount of KRW 200,000,000,000 as the ground for the application of the provisional attachment of this case. The obligor changed from the letter of commitment to the above 200,000,000,000 won to the above 20,000,000 won, and the debtor did not claim for the provisional attachment of KRW 50,000,000,000,000,000,000,000 won before and after the provisional attachment of this case. The obligor did not claim for the provisional attachment of KRW 1,501,06,00,00,00,000.

Therefore, the court below clarified the meaning of the Re-Appellant's argument and, if the purport of changing the preserved right as above, it should have judged the legitimacy of the argument and the necessity of preservation, and should have judged the propriety of the provisional seizure decision of this case. The court below erred by misapprehending the legal principles on the preserved right of provisional seizure, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds for re-appeal as to this are with merit.

Therefore, the order of the court below shall be reversed, and 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 Nung-hwan (Presiding Justice)