[1] Whether a change in circumstances, which is the grounds for revocation of a preservation order, constitutes a case where a creditor may be deemed to have renounced his/her intent of preservation (affirmative)

[2] Whether only the fact that a lawsuit on the merits against the preservation order was withdrawn, constitutes a change in circumstances, which are grounds for revocation of the preservation order (negative)

[1] Where there are circumstances to deem that the creditor has renounced his/her intent to preserve after the preservation order was issued, it shall be deemed that the reason for revocation of the preservation order constitutes change in circumstances.

[2] Even if the principal lawsuit against an order for preservation is deemed to have been withdrawn due to the absence of both parties, the same lawsuit may be brought again inasmuch as it does not affect the right for preservation, as in the case of the withdrawal of a lawsuit in ordinary, unless the final judgment on the principal lawsuit has been rendered, in light of the cause, motive, and subsequent circumstances of the withdrawal, etc., unless the creditor is deemed to have renounced his/her intent for preservation, the mere fact that the principal lawsuit against the order for preservation is deemed to have been withdrawn cannot be deemed to constitute a change in circumstances, which are grounds for revocation.

[1] Article 706 (1) of the Civil Procedure Act / [2] Articles 240 and 706 (1) of the Civil Procedure Act

[2] Supreme Court Decision 92Da9449 delivered on June 26, 1992 (Gong1992, 2273) Supreme Court Order 79S9 delivered on September 5, 1979 / [Abolition]

Applicant (Law Firm East, Attorneys Jeong-gun et al., Counsel for the plaintiff-appellant)

Yongsan Construction Corporation

Seoul District Court Decision 97Na17406 delivered on September 25, 1997

The appeal shall be dismissed. The costs of appeal shall be assessed against the applicant.

We examine the grounds of appeal.

Where a creditor has given up his/her intent of preservation after the order has been issued, change of circumstances, which are grounds for revocation of the order, should be deemed to fall under the grounds for revocation of the order. However, even if the principal lawsuit against the order of preservation is deemed to have been withdrawn due to the absence of both parties, as in the case of withdrawal of a lawsuit, if the principal lawsuit against the order of preservation is deemed to have been withdrawn prior to the final judgment on the principal lawsuit, as in the case of withdrawal of a lawsuit, it does not affect the right of preservation, and thus, he/she may bring a same lawsuit again (Article 240(2) of the Civil Procedure Act), so long as the creditor is not deemed to have given up his/her intent of preservation in light of the grounds for withdrawal, motive, and subsequent circumstances, the mere fact that the principal lawsuit against the order of preservation

Unlike this view, the Supreme Court Order 79S9 dated September 5, 1979, which held to the effect that the principal lawsuit against the preservation order was withdrawn solely on the basis of the fact that the lawsuit against the preservation order was withdrawn, constitutes a change in circumstances, which is the cause of revocation of the preservation order, shall be discarded.

According to the facts duly established by the court below and the records, the respondent applied for provisional attachment on the real estate of this case with the claim amounting to 30,000,000 won for the remainder of the purchase and sale against the applicant as the preserved claim and received the provisional attachment decision on August 17, 1995. The respondent filed a lawsuit against the applicant for provisional attachment on the merits of this case with the Seoul District Court 95 Kadan (Case No. 1 omitted), but the lawsuit against the applicant was deemed to have been withdrawn on September 30, 1996. However, on February 17, 1997, the respondent filed a lawsuit identical to the lawsuit that was deemed to have been withdrawn against the applicant.

In light of the fact that the respondent has again filed a lawsuit on the merits of the provisional seizure decision in this case and sought a procedural resolution of the preserved right, the respondent cannot be deemed to have renounced his/her intent to preserve the preserved right by the provisional seizure decision in this case. Thus, the fact that the lawsuit on the merits is deemed to have been withdrawn cannot be deemed to constitute a change in circumstances, which are the grounds for revocation of the provisional seizure decision in this case.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the cancellation of provisional seizure due to changes in circumstances. The ground of appeal pointing this out is not acceptable.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by all participating Justices on the bench.

1. As to the Plaintiff’s ground of appeal, the lower court did not err by misapprehending the legal principles as to the Plaintiff’s ground of appeal. In so determining, the lower court did not err by misapprehending the legal principles as to the Plaintiff’s ground of appeal, thereby adversely affecting the conclusion of the judgment.