If a person who acquired a provisional seizure raises an objection against a third party on the ground of the repayment of the secured claim, and then files an objection to the suspension of compulsory execution, it is essential to prove the repayment (affirmative)

A person who has acquired a provisional seizure may claim the complete ownership of the secured claim on behalf of the debtor, which is not subject to the restriction on provisional seizure. Therefore, there are legal grounds for raising an objection to the compulsory execution. However, in the case of raising an objection by a third party on that ground, there is a vindication of the fact of repayment of the secured claim in ordering the suspension of compulsory execution upon request of the party.

Articles 509(3) and 507(2) of the Civil Procedure Act

Special Appellants

Other Party

Seoul District Court Order 82Ka8650 dated July 13, 1982

The original decision shall be revoked and the case shall be remanded to the Southern Branch of the Seoul District Court Panel Division.

The grounds for special appeal are examined.

In a case where an action of demurrer against a third party is brought, the court ordered the suspension of compulsory execution at the request of a party, as stipulated in Articles 509(3) and 507(2) of the Civil Procedure Act, if the grounds for asserting such objection are legally well-grounded, and there is a vindication as to the facts. According to the records of this case, the applicant, who is the other party, sought a ruling of the suspension of compulsory execution of this case, and the special appellant, submitted a provisional attachment as to the real estate of this case owned by the above obligor with the claim amounting to KRW 2,00,000 against the non-applicant as the preserved claim, and later, the ownership transfer registration was transferred to the applicant and the preservation claim was extinguished by the deposit of the above provisional attachment claim in full on behalf of the above obligor, and therefore, the compulsory execution of this case against the above real estate owned by the applicant under the name of the special appellant is not permitted. However, the court below asserted that the application of this case was not presented as a certified copy of the registry of this case and a certified copy of the register of this case.

Therefore, the applicant who acquired the real estate provisionally seized can assert the complete ownership of the creditor who is not subject to the restriction on provisional seizure on behalf of the debtor by paying out the preserved claim on behalf of the debtor. Thus, the grounds for objection by the applicant should be legally well-grounded, but it is clear that there is no proof as to the fact of the repayment, and therefore there is no adequate proof as to the fact of the allegation, which is one of the requirements, in order to order the suspension of execution. Thus, the court below cannot make a decision of the provisional seizure, but the disposition of the original decision allowing it cannot be deemed to be a violation of the law

Therefore, the decision of the court below is revoked and the case is remanded to the Seoul District Court Panel Division, which is the Seoul District Court. It is so decided as per Disposition by the assent of all participating judges.

Justices O Sung-sung(Presiding Justice)