Method of exercising a security interest by a mortgagee under Article 115(3) of the Civil Procedure Act

The exercise of security right under Article 115(3) of the Civil Procedure Act should be exercised by means of a lawsuit against the secured obligor within a certain period of time set by the court.

Article 115 of the Civil Procedure Act

Supreme Court Order 62Ma2 Decided April 27, 1962

Re-appellant

Other Party

Seoul High Court Order 78Ra56 dated August 14, 1978

The reappeal is dismissed.

We examine the reasons for reappeal.

The exercise of security right under Article 115(3) of the Civil Procedure Act is that the court must exercise the right against the person who is responsible for security by means of a lawsuit within a certain period of time set by the court. If the person who has the right to security fails to exercise the right by the above method within that period, it is the party member's opinion that the person who has the right to security can cancel the security by deeming that the person who has the right to the security agrees to cancel the security (see, e.g., Supreme Court Order 62Ma2, Apr. 27, 1962; 67Ma406, Jun. 22, 1967). Thus, in the above opinion, the above opinion only raised an objection against the prior notice and demand for the exercise of the right that the respondent is in the standard cost of the lawsuit without filing a lawsuit or exercising the right within the maximum period of time set by the court of first instance, it is deemed that the respondent did not exercise the right within the prescribed period of time, and thus, the grounds for revoking the security application of this case are not justified.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Byung-hee (Presiding Justice) (Presiding Justice)