[1] Whether a creditor of provisional seizure may file an application for compulsory auction on the basis of registration of provisional seizure which has not yet been cancelled while dissatisfied with a decision to revoke provisional seizure (affirmative)

[2] In a case where a provisional attachment was executed as a result of the decision to commence compulsory auction, whether the debtor can raise an objection against the provisional attachment, file an application for revocation thereof, or seek revocation of the execution of provisional attachment itself (negative with qualification)

[1] Articles 276, 288, and 293 of the Civil Execution Act / [2] Articles 223, 276, 288, and 293 of the Civil Execution Act

[2] Supreme Court Decision 2001Ma6620 Decided March 15, 2002 (Gong2002Sang, 951) Supreme Court Decision 2004Da54725 Decided December 10, 2004 (Gong2005Sang, 112)

Applicant

Korea Technology Credit Guarantee Fund (Law Firm Dudi, Attorneys Kim Jung-chul et al., Counsel for the defendant-appellant)

Daegu District Court Order 2007Ra278 dated June 11, 2008

The order of the court below shall be reversed and the decision of the court of first instance shall be revoked. The application for the revocation of provisional seizure in this case shall be dismissed.

The grounds of reappeal are examined.

1. Even if a third party who has acquired the ownership of the object of provisional seizure after the registration of provisional seizure on the real estate after the provisional seizure, applies for the cancellation of provisional seizure on the grounds of change in the situation, and the court accepted it and decided to cancel the provisional seizure, the prohibition of disposal due to the execution of provisional seizure still remains effective until the cancellation of the registration of provisional seizure based on it. Thus, the creditor of provisional seizure may lawfully apply for the compulsory auction on the basis of the registration of provisional seizure which

In addition, in case where the auction court accepted an objection against the decision of compulsory commencement of real estate auction and rendered a decision to revoke the decision of compulsory commencement of auction, interested parties may file an immediate appeal against it (Article 86(1) and (3) of the Civil Execution Act). If such an immediate appeal is filed, the decision of revocation of compulsory commencement of auction becomes effective (Article 17(1) and (2) of the Civil Execution Act).

On the other hand, in case where the provisional seizure was executed after the provisional seizure on real estate had been executed and the provisional seizure was executed as a result of the decision of compulsory commencement of auction, it has the same effect as the execution of the provisional seizure was executed as it was included in the principal execution, and as long as the execution is effective, the debtor cannot file an objection against the provisional seizure, a request for revocation, or a request for revocation of the provisional seizure itself (see, e.g., Supreme Court Decisions 2001Ma6620, Mar. 15, 2002; 2004Da54725, Dec. 10, 2004; 2007Ma1493, Apr. 28, 2008).

2. The court below acknowledged the facts as stated in its reasoning based on the record, and rejected the Re-Appellant's assertion that the provisional attachment of this case was revoked on December 3, 2007, and the Re-Appellant's claim that the provisional attachment of this case had already been executed on October 12, 2007, and there was no benefit to seek cancellation of the provisional attachment of this case, even if the Re-Appellant, who is the creditor of the provisional attachment of this case, satisfies the requirements to proceed to the execution of this case upon a final judgment in favor of the court in the merits lawsuit, because it did not execute the provisional attachment of this case for a considerable period of time, and it was no longer necessary to maintain the provisional attachment of this case due to the extinction of the preservation necessity.

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. The reasoning of the lower judgment and the record reveal the following facts.

① On October 25, 1996, the Re-Appellant obtained the provisional attachment decision of this case on October 26, 1996 and completed the provisional attachment registration of this case on October 26, 1996 with respect to the real estate of this case which was owned by non-applicant at the time.

② At around 200, the Re-Appellant filed a lawsuit on the merits of the claim for indemnity against the non-applicant, and the judgment became final and conclusive on June 22, 200, upon winning the case on May 18, 200.

On the other hand, the applicant filed a lawsuit against the applicant on January 30, 2007 seeking the implementation of the procedure for the registration of transfer of ownership based on sale and purchase of the instant real estate, and the judgment became final and conclusive on February 15, 2007. Based on the final and conclusive judgment, the applicant completed the registration of transfer of ownership in the name of the applicant on June 8, 2007.

③ On August 1, 2007, the applicant filed the instant application seeking revocation of the instant provisional attachment on grounds of change of circumstances, and on September 20, 2007, the first instance court rendered a decision to revoke the instant provisional attachment on the grounds as seen earlier.

The Re-Appellant filed an immediate appeal against the ruling to revoke a provisional attachment on October 9, 2007. On October 10, 2007, the Re-Appellant applied for a compulsory auction on the instant real estate based on the executory exemplification of the above judgment against the non-applicant on October 10, 207, and the decision to commence compulsory auction was issued on October 12, 2007 (the registration of the above decision to commence compulsory auction was made on October 16, 2007). Accordingly, the provisional attachment of this case was implemented as the main seizure.

On the other hand, on October 12, 2007, the Re-Appellant deposited the above five million won on October 18, 2007, upon receiving a decision to suspend its effect until the appellate court rendered a security deposit as to the decision to revoke the provisional attachment of this case.

④ On October 12, 2007, the applicant filed an objection against the decision to commence compulsory auction on the instant real estate. On December 3, 2007, the auction court notified the re-appellant (applicant for compulsory auction) of the decision to revoke provisional attachment of this case ( October 4, 2007). After the re-appellant’s decision to revoke the above decision to commence compulsory auction and dismissed the application for compulsory auction by the re-appellant on the grounds that it is impossible to enforce compulsory execution on the instant real estate owned by the applicant based on the original copy of the judgment with executory power over the non-applicant.

Accordingly, the re-appellant filed an immediate appeal against the ruling to revoke the above ruling of compulsory commencement of auction, and the appellate court revoked the first instance decision on December 30, 2009 and dismissed the petitioner's objection (Tgu District Court 2007Ra340), and the re-appeal against the petitioner was dismissed on May 14, 2010 by the Supreme Court (Supreme Court 2010Ma124).

⑤ On June 11, 2008, the court below dismissed the Re-Appellant's appeal of this case on the grounds as seen earlier, and the Re-Appellant filed the reappeal of this case.

On the other hand, on June 23, 2008, the re-appellant deposited KRW 10 million on July 1, 2008, upon receiving a decision to suspend its effect until the re-appeal of this case, on condition that he deposits KRW 10 million as security.

6. The provisional attachment registration of this case was not cancelled in accordance with the decision to revoke the provisional attachment of this case before the provisional attachment of this case was decided to suspend its validity.

B. In light of the above legal principles in light of the above facts, the re-appellant filed an immediate appeal against the ruling to revoke the provisional seizure of this case, and immediately applied for a compulsory auction against the real estate of this case on October 12, 2007, and the provisional seizure of this case was implemented as the principal seizure. Thus, the re-appellant had already commenced the execution of this case at the court below stage. Therefore, the ground for revocation of provisional seizure under the premise that the provisional seizure of this case had not been executed for a considerable period from the time when the provisional seizure of this case was executed was already extinguished at the court below stage, and as long as the execution of this case is in force, the applicant cannot seek the revocation of the provisional seizure of this case.

C. Thus, the court below accepted the applicant's assertion, and maintained the first instance court's decision ordering the revocation of the provisional seizure of this case even though the applicant's request for revocation of the provisional seizure of this case was rejected. In such a case, the court below erred by misapprehending the legal principles on the revocation of provisional seizure where the principal execution based on the provisional seizure was made,

4. Therefore, the order of the court below is reversed without any need to determine the remainder of the grounds for re-appeal, and the case is deemed sufficient to directly judge the members pursuant to the above facts. Thus, the decision of the court of first instance as to the legitimacy of the application for revoking provisional seizure of this case is revoked for the aforementioned reasons, and the application for revoking provisional seizure of this case is dismissed, and the total costs of the lawsuit are borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)