[1] The method of exercising the right by the secured right holder who received a peremptory notice to exercise the right pursuant to Article 125(3) of the Civil Procedure Act

[2] The measures to be taken by the court in a case where a person having the right to collateral claims exercises his/her right and proves it before a decision to revoke collateral is finalized pursuant to Article 125(3) of the Civil Procedure Act

[3] Where a person holding a security right under Article 125(3) of the Civil Procedure Act is deemed not to have existed from the beginning due to the withdrawal, etc. of a lawsuit filed by the person holding the security right by exercising the right, whether the person holding the security right shall be deemed to have consented to the revocation of

[1] Article 125(3) of the Civil Procedure Act / [2] Article 125(3) of the Civil Procedure Act / [3] Article 125(3) of the Civil Procedure Act

[1] Supreme Court Order 92Ma728 dated October 20, 1992 / [2] Supreme Court Order 2000Ma2407 dated July 18, 200 (Gong200Ha, 1919)

Re-appellant

Dok-dong 19 Dok-dong Apartment Reconstruction Project Association

Seoul High Court Order 2007Kadam1548 dated December 13, 2007

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

Article 125(3) of the Civil Procedure Act provides that the court shall, upon the application of the person who has the right to the security, notify the person who has the right to the security, upon the application of the person who has the right to the security, after the completion of the lawsuit, to exercise his right within a given period, and if the person who has the right to the security, fails to exercise his right within the given period, the court may decide to revoke the security by deeming that there has been the consent of the person who has the right to the security concerning the revocation of the security. In this case, the exercise of the right by the person who has the right to the security should be done by means of a lawsuit against the person who has the right to the security (see Supreme Court Order 92Ma728, Oct. 20, 1992). If the person who has the right to the security, exercises his right before the decision to revoke the security becomes final and conclusive and proves it, the decision to revoke the security cannot be maintained

On the other hand, if the right holder had exercised his right to file a lawsuit within the exercise period or before the decision to revoke a security became final and conclusive, but it is later deemed that the right had not existed from the beginning on the grounds that the lawsuit was withdrawn or withdrawn, etc., the consent of the holder of the right to revoke a security should be deemed to have been obtained upon the lapse of the exercise period.

According to the records, on December 4, 2007, before the decision of revocation of security becomes final and conclusive after the expiration of the exercise period, the person holding the right to the security of this case filed an application for the payment order against the re-appellant seeking the payment of the secured debt secured by the security of this case with Seoul Dong District Court 2007Guj11518, which was before the decision of revocation of security. However, on January 14, 2008, the person holding the right to the security of this case withdrawn the above payment order. Thus, the person holding the right to the security of this case shall be deemed to have consented to the cancellation of security by withdrawing the above payment order, and in such a case, the court may revoke the above decision of revocation of security. Thus, the order of dismissal of the

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 on the bench.

Justices Kim Young-ran (Presiding Justice)