In the case of a provisional seizure for the preservation of a compulsory execution on the property of a cooperative in the Civil Act, whether a provisional seizure order for only one of the union members as a provisional seizure obligor can be executed on the property of a cooperative (negative)

In order for creditors of a cooperative to enforce a compulsory execution on the property of the cooperative in the Civil Act, it is necessary to enforce the executive title against all the union members. The provisional seizure for the purpose of preserving the compulsory execution on the property of the cooperative is also required under the provisional seizure order against all the union members. As such, the provisional seizure order for only one of the union members as a provisional seizure obligor cannot be executed on the property of the cooperative

Articles 703, 704, and 712 of the Civil Act; Article 48 of the Civil Execution Act

[Defendant-Appellee] Plaintiff (Attorney Cho Yong-sik, Counsel for defendant-appellee)

Defendant

Seoul High Court Decision 2011Na22759 decided February 10, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In order for creditors of a cooperative to enforce a compulsory execution against its property in a cooperative under the Civil Act, a provisional seizure order shall be issued against all the union members as well as a provisional seizure order against all the union members for the purpose of preserving the compulsory execution against the union property. Thus, a provisional seizure order against only one of the union members shall not be issued as a provisional seizure order against only one of the union members;

2. According to the reasoning of the judgment of the court of first instance, the court below accepted the judgment of the court of first instance, and determined that the plaintiff and the non-party 1 corporation (hereinafter only referred to as "non-party 1 corporation") are in a partnership relationship under the Civil Act with which they jointly hold the instant exhibition, and that the non-party 1 corporation entered into a contract with the non-party 2 corporation (hereinafter referred to as "non-party 2 corporation") as the manager of the association in the position of the non-party 2 corporation as the plaintiff and the non-party 1 corporation'

Furthermore, on the grounds stated in its reasoning, the lower court determined that, on April 15, 2009, the agreement entered into by Nonparty 1 on April 15, 2009 with ○○○○ Company was effective for holding the instant exhibition and the agreement entered into with ○○○ Company as a partnership member, and thus, ○○○○ constitutes a partnership creditor. On June 8, 2009, the Defendant, who subrogated ○○○○○, a partnership creditor, was provisionally seized the claim against Nonparty 1 Company and the third obligor against Nonparty 2 (hereinafter “instant provisional attachment”). However, the Plaintiff’s creditor may file a lawsuit for performance against each partner on the basis of the personal responsibility of each partner and file a provisional attachment to preserve its execution. Accordingly, the provisional attachment of this case is a provisional attachment for preserving the partnership’s claims, and thus dismissed the Plaintiff’s claim of this case.

3. However, in light of the legal principles as seen earlier, even if ○○○○○’s claim under the agreement on April 15, 2009 constituted a claim against the Plaintiff and the association whose members are Nonparty 1, the provisional seizure order that only one of the members of the association is the provisional seizure obligor, which is not the personal property of Nonparty 1, but the claim against Nonparty 2, the partnership property, cannot be provisionally seized.

Nevertheless, the court below held that the provisional attachment of this case, which seized only one member of the non-party 1 company as the provisional attachment obligor, was lawful for the reasons indicated in its holding. In so doing, the court below erred by misapprehending the legal principles on the compulsory execution and preservative measure on the partnership property, thereby affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)