209Kadan6830 Claim Provisional attachment

A person shall be appointed.

City City:

A person shall be appointed.

Incheon

A person shall be appointed.

Seoul Guro-gu

May 20, 2009

The case shall be transferred to the Incheon District Court.

1. Facts of recognition;

In this case, the creditor filed an application for provisional attachment seeking provisional attachment of the goods-price claim held by the debtor against the third debtor (hereinafter referred to as "the seized claim") with this court where the third debtor's general forum has been located.

2. (1) Article 278 of the Civil Execution Act provides that "The provisional attachment is subject to the jurisdiction of the competent court of the provisional attachment lawsuit" under the jurisdiction of the district court having jurisdiction over the place of the provisional attachment or the competent court of the merits. (2) First, under Articles 2 and 3 of the Civil Procedure Act, the competent court of the merits is the court (Seoul District Court) where the debtor's general forum is located under Article 8 of the Civil Procedure Act and Article 467(2) of the Civil Act. (3) Next, it is a question as to whether the claims subject to the provisional attachment (the above claims are monetary claims, and the claims are discussed only for monetary claims) of this case, which are the objects subject to the provisional attachment by the Seoul Southern District Court where the third debtor's general forum is located, is located.

3. Foreign legislation (1) Article 919 of the German Civil Procedure Act (hereinafter “ZPO”) provides for the same provision as Article 278 of the Korean Civil Execution Act with respect to the jurisdiction of a provisional attachment lawsuit. However, in the former part of Article 23(2) of the ZPO, “in the case of a claim,” Article 23(2) of the ZPO provides for the debtor’s address as the location of the property, and Article 27(2) of the ZPO provides for the principle of payment of the obligation (Article 269 of the German Civil Procedure Act (hereinafter “ZPO”) with respect to the obligation to collect the obligation of the debtor with respect to the payment (Article 27(2) of the ZPO’s address.

Therefore, in Germany, if the object of provisional seizure is a claim, the address of the third party obligor is the location of the claim to be seized under the provision on the location of the claim (the second sentence of Article 23 of the ZPO), and thus, the jurisdiction over the provisional seizure lawsuit belongs to the court in which the third party obligor's domicile is the location of the claim to be seized. (2) The Civil Procedure Act of Japan does not have any provision on the location of the property like the second sentence of Article 23 of the ZPO, but Article 12 (4) 1 of the Civil Procedure Act provides that if the object of provisional seizure or the dispute is a claim (the claim stipulated in Article 143 of the Civil Execution Act of 1979 (the Civil Execution Act of 4; hereinafter the same shall apply in this Article), it shall be the location of the general forum of the debtor of the claim (hereinafter referred to as the "third party obligor"), and therefore, it shall be under the jurisdiction of the court in which the third party obligor's general forum is located.

4. Determination

(1) As seen above, in the case of Germany, the place of performance of obligations under the Civil Act, the location of the claim, and the location of the object of provisional seizure are all the same. However, in the case of Japan or Korea before 190, there is no provision on the location of the claim, and thus, it shall be determined through

(2) In the case of Korea where there is no express provision on the location of a claim, there is a view that Article 224(2) of the Civil Execution Act, which is a provision on the supplementary jurisdiction of a court of execution, has the jurisdiction over a provisional attachment lawsuit at the court where a third obligor’s general forum is located, by analogying the provision on the location of a claim (Article 224(2) of the Civil Execution Act, which is a provision on the supplementary jurisdiction of a court of execution, (3).

In light of the supplementary jurisdiction provisions on the court of execution (Article 224 of the Civil Execution Act only stipulates that the district court in the location of the third party debtor's general forum shall be the executing court only in the absence of the district court in the location of the debtor's general forum. It is reasonable in light of the overall legal system to interpret the duty of performance under the Civil Act as the location of the claim by the provisions on the location of the claim under the substantive law is inconsistent with the rights and obligations of the claim relationship and the preservation judgment for the formation of the preservation order and the execution of the preservation order, in the system of the preservation lawsuit consisting of "the preservation judgment for the formation of the preservation order" and "the preservation execution for the execution of the preservation order", as seen in the German legislation, there is no reasonable reason or logical relationship to interpret the latter's territorial jurisdiction as the location of the claim, as stipulated in the German legislation.

Therefore, in case where an article to be provisionally seized pursuant to Article 467(2) of the Civil Act, which provides for the principle of participation obligation (in case of a claim, Article 484 of the Civil Act of Japan), is a claim, the place where the general forum of the obligor (in case of the relationship with the third obligor, the obligee is the seat of the seized claim), who is the place of the obligation to perform the obligation to be seized, shall be deemed to be the seat of the seized claim. Therefore, in this case, the court, the general forum of the third obligor, does not have jurisdiction over this case (in order to protect the third obligor, such as the convenience of the deposit of the third obligor, legislative measures

5. Conclusion

Thus, the Incheon District Court, the district court in the location of the debtor's general forum ( simultaneously with the competent court in the merits, at the same time with the jurisdiction of the district court in the location of the seized claim), shall be transferred, and it is so decided as per Disposition.

May 20, 2009

Judge Cho Chang-young