[1] Whether the validity of the delegation of a lawsuit based on the procedure for applying for a preservative measure is also applicable to the case of filing a lawsuit based on the procedure (affirmative)

[2] Whether the provisional disposition should be revoked in a case where the provisional disposition obligee has filed a lawsuit within the designated period in the order to file a lawsuit and failed to submit documents proving such fact (affirmative)

[1] In light of the fact that the order to file a lawsuit based on the debtor's request for a preservative measure is basically incidental to the preservative procedure and is merely for determining whether to maintain the preservative measure, and that the attorney who has filed a request for a preservative measure has a right to file a lawsuit in a lawsuit where he/she has an objection to the preservative measure, the validity of the delegation of lawsuit based on the procedure for applying for a preservative measure extends to the case of filing a

[2] As long as a provisional disposition creditor has failed to file a lawsuit within the designated period in the order to file a lawsuit and submit a document proving such fact, the provisional disposition should be revoked in accordance with Article 287(3) of the Civil Execution Act.

[1] Article 90 of the Civil Procedure Act / [2] Article 287 of the Civil Execution Act

[2] Supreme Court Order 2003Ma793 dated June 18, 2003 (Gong2003Ha, 1678)

Applicant (Attorney Lee Jae-soo, Counsel for defendant-appellant)

Respondent

Seoul High Court Order 2003Ra132 dated May 19, 2003

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

1. In view of the fact that the case of filing the order is treated as a separate case from the case of filing the application for provisional disposition, and that the application for filing the order may be filed after a considerable period of time has elapsed since there is no restriction on a special period of time, the court below rejected the application of this case by the applicant seeking revocation of the order of provisional disposition on the ground that the legal representative of the case of filing the order of provisional disposition is not entitled to receive the order of lawsuit on behalf of the creditor, and that the delegation contract entered into with the legal representative of the case of filing the application for provisional disposition does not stipulate that the respondent is authorized to receive the order of lawsuit related to provisional disposition, and that it is difficult to recognize that the delivery of the order of this case to the above legal representative of the respondent for the case of filing the application for provisional disposition is a legitimate service.

2. However, we cannot agree with the above determination by the court below.

In light of the fact that the order to file a lawsuit based on the application filed by a debtor for a preservative measure is basically incidental to the preservative measure procedure and is merely for determining whether to maintain the preservative measure, and that the attorney who has filed a petition for a preservative measure has the right to file a lawsuit even in the case of an objection to the preservative measure, the validity of the delegation of a lawsuit based on the procedure for applying for a preservative measure extends to the case of filing a lawsuit based on the procedure

Therefore, in the case of the application for provisional disposition of this case, the service of the decision of the order of this case against the law firm winter who was delegated by the creditor (the respondent of this case) is lawful, and as long as the respondent has filed a lawsuit within the period designated in the order of this case and failed to submit the documents proving the fact, the provisional disposition of this case should be revoked pursuant to the provisions of Article 287 (3) of the Civil Execution Act (see Supreme Court Order 2003Ma793, Jun. 18, 2003).

Nevertheless, the court below determined that the law firm BJ entrusted with the application for provisional disposition of this case did not have the authority to receive the order of this case. In so doing, the court below erred by misapprehending the legal principles as to the scope of the power of attorney, which affected the decision

3. Therefore, the order of the court below is reversed, 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 Ji-dam (Presiding Justice)