[1] Where a provisional seizure was executed after a provisional seizure on a real estate was executed and the provisional seizure was executed as a result of the compulsory commencement decision, but the compulsory commencement decision was about the real estate which had already been decided to commence the auction procedure and was based on a request for auction after the completion period to demand a distribution, whether the debtor or interested person has a benefit to seek

[2] In a case where a provisional seizure creditor acquires an executive title with a debtor's cooperation outside the litigation procedure, such as a certificate of execution, whether it constitutes a ground for revocation of provisional seizure under Article 288 (1) 3 of the Civil Execution Act (negative), and in this case, whether the right indicated in the executive title should be recognized as identical to the preserved right of provisional seizure (affirmative)

[1] Articles 83, 87(1), 148(1), 276, 283, 288, 293, and 299 of the Civil Execution Act / [2] Articles 276 and 288(1)1 and 3 of the Civil Execution Act

[1] Supreme Court Decision 2008Ma950 Decided November 30, 2010 / [2] Supreme Court en banc Decision 97Da47637 Decided May 21, 1998 (Gong198Ha, 1701)

Applicant

Respondent (Law Firm Gael, Attorney Jeon Gyeong-soo, Counsel for defendant-appellant)

Seoul High Court Order 2013Ra231 dated July 29, 2013

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

The grounds of reappeal are examined.

1. As to the ground of reappeal as to the benefit of the provisional attachment revocation

A. Where the provisional seizure on real estate was executed after the provisional seizure on the real estate was executed and the provisional seizure was executed as a result of the commencement of compulsory auction, it has the same effect as the provisional seizure was executed since it was included in the principal execution, and as long as the principal execution is effective, the debtor cannot file an objection against the provisional seizure, file an application for revocation, or seek revocation of the provisional seizure itself (see Supreme Court Order 2008Ma950, Nov. 30, 2010, etc.).

On the other hand, when there exists an application for other compulsory auction against a real estate on which the decision to commence the auction procedure has already been made, the court shall re-examine the decision to commence the auction procedure, and in such a case, the auction is conducted according to the execution procedure which has first rendered the decision to commence the auction (Article 87(1) of the Civil Execution Act), and any execution creditor who has filed an application for double auction after the completion period to demand a distribution is not entitled to receive dividends based on the seizure (Article 148 Subparag. 1 of the Civil Execution Act). Therefore, after the provisional seizure of real estate has been executed, the provisional seizure was performed due to the decision to commence the auction procedure, but the compulsory decision to commence the auction was already made against the real estate on which the decision to commence the auction procedure had already been made, and if the request for auction after the completion period to demand a distribution had already been withdrawn or the procedure has been revoked, the debtor

B. According to the reasoning of the order of the court below and the record, ① the respondent filed an application for provisional seizure of real estate against one Dong Dong Dong Construction Co., Ltd. (hereinafter “Dong Dong Construction”), on May 21, 2008, the above court rendered a provisional seizure order of this case on May 21, 2008. Accordingly, the provisional seizure registration of each of the real estate of this case was completed on the same day, ② the applicant filed an application for compulsory auction of this case at around 31050 of the above court around 2008, and accordingly, the above court rendered a compulsory auction order of this case on June 25, 2008 and determined the completion period for demand for distribution as of September 29, 208, ③ the respondent applied for provisional seizure of this case on September 20, 2013, around 67268 and around 2014, for compulsory auction of this case on each of the real estate of this case on May 21, 2016.

Examining these facts in light of the legal principles as seen earlier, the instant provisional seizure was carried out as a result of the instant court’s order to commence compulsory auction (No. 2013TA) and No. 67268, 2014TA, 39703. However, the said order to commence compulsory auction was related to each of the instant real estate that had already been commenced for compulsory auction (No. 2008TA), and was based on a double auction application after the completion period to demand a distribution. As such, the applicant is an interested party who acquired ownership of each of the instant real estate and has the interest to seek

Therefore, the court below is just in holding that the application of this case was legitimate, and there is no error of law by misunderstanding the legal principles as to the interests of the application of provisional attachment revocation, contrary to the allegations in the grounds of reappeal

2. As to the ground for reappeal as to the revocation of provisional seizure

A. Article 288(1)1 of the Civil Execution Act provides that provisional seizure may be revoked in cases where the reason for provisional seizure has ceased to exist or where other circumstances have changed (hereinafter “reasons 1”), and subparagraph 3 provides that provisional seizure may be revoked even in cases where “where a lawsuit has not been instituted within three years after the provisional seizure was executed” (hereinafter “reasons 3). In cases where a creditor has given up or lost his/her intention to preserve the provisional seizure after the provisional seizure was rendered, provisional seizure may be revoked by falling under “where circumstances have changed” (see Supreme Court en banc Decision 97Da47637, May 21, 1998, etc.), and subparagraph 3 provides that provisional seizure shall be deemed a typical case where a creditor may have given up or lost his/her intention to preserve the provisional seizure.

The purport of the above provision is to ensure that provisional seizure is merely an urgent and provisional measure to preserve the right until the right relationship is finally realized, and to promptly conclude the legal relationship by having the creditor stay only in preserving the claim, and by going through the procedure to recover and satisfy the claim, and if the creditor neglects to do so, the debtor is able to escape from the restriction caused by provisional seizure.

In light of the above provisions and purport of Article 288(1) of the Civil Execution Act, the reason under subparagraph 3 does not necessarily mean to limit the case where an execution title, such as a final judgment, is acquired by filing a lawsuit on the merits, and there is no reason to limit the case where an execution clause is granted to an executive title with executory power, and provisional seizure may be executed as the principal seizure, and the dividends may be paid to a creditor of provisional seizure deposited in accordance with the procedure for sale, etc. of real estate, which is the object of provisional seizure, by being entrusted with the payment of dividends to the creditor of provisional seizure deposited in accordance with the procedure for sale, etc. of the real estate. In addition, in a case where a conciliation or judicial compromise with the final judgment is established in the course of a lawsuit and where an execution title is acquired with the debtor's cooperation outside the litigation procedure, such as a certificate of execution, if it is evident that the creditor of provisional seizure has the intention

However, in this case, executive titles should be the subject of provisional seizure, so the rights indicated in executive titles should be recognized as identical to the preserved rights of provisional seizure and the claim basis.

B. According to the reasoning of the order of the court below and the record, ① the respondent filed an application for provisional seizure against Japan Construction with the Incheon District Court 2008Kahap738, May 21, 2008, and the above court rendered the provisional seizure order with the content of the claim amount and the claim amount as "1.1 billion won" on the same day. Accordingly, the provisional seizure registration for each of the real estate of this case was completed on the same day, ② the respondent filed a lawsuit against Japan Construction with the Seoul Southern District Court 2008Kahap12683, 2010Na36379, Dec. 15, 2010, which is the appellate court's appellate court's judgment that the respondent did not immediately request the Respondent to pay the construction price of this case to the Seoul Southern District Court 2010Na36379, Dec. 15, 2010, the Respondent did not immediately request the Respondent to pay the construction price of this case to the Respondent 3006.3 billion won and its delay damages.

C. Examining the foregoing facts in light of the legal principles as seen earlier, the respondent acquired the instant notarial deed, which is an executive title, on February 23, 201, within three years after the execution of the instant provisional attachment, and the claim of KRW 34,968,00,00, which is the right indicated in the instant notarial deed, is recognized as identical to the preserved right of the instant provisional attachment, and thus, cannot be deemed as falling under subparagraph 3.

Nevertheless, the lower court determined otherwise that the reason under subparagraph 3 was recognized even if the creditor of provisional attachment acquired the title by preparing a notarial deed. Therefore, the lower court erred by misapprehending the legal doctrine on the reason under subparagraph 3, thereby adversely affecting the conclusion of the judgment. The ground of reappeal assigning this error has merit.

3. As to the ground for reappeal as to the good faith principle

Based on its stated reasoning, the lower court rejected the respondent’s assertion that the instant application violates the good faith principle.

Examining the records in light of the relevant legal principles, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the good faith principle as otherwise alleged in the grounds of reappeal.

4. Conclusion

The order of the court below is reversed without examining the remaining grounds for reappeal, and the case is 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 Lee In-bok (Presiding Justice)