Han Bank Co., Ltd. and one other (Law Firm Sejong, Attorneys Lee Young-gu et al., Counsel for the plaintiff-appellant)

Korea Credit Guarantee Fund (Law Firm Square, Attorneys Choi Sung-won et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Order 2013Kahap405 dated June 14, 2013

1. All appeals filed by the applicants are dismissed.

2. The costs of appeal shall be borne by the applicant.

The decision of the first instance shall be revoked. The respondent shall notify the applicant that the applicant promotion company will provide a credit guarantee for the obligations listed in the separate sheet that the applicant promotion company owes to the applicant bank and issue a guarantee for the obligations listed in the separate sheet. If the respondent fails to perform the above obligations, the respondent shall pay the applicant the amount calculated by the rate of KRW 10,000,000 per day from the day following the delivery of the original copy of the decision of this case.

1. cite the decision of the court of first instance;

The reasons for the decision of this court are as stated in the reasoning for the decision of the court of first instance, except for adding the following judgments, and therefore, they are cited in accordance with Article 203-3(1) of the Civil Execution Rule.

2. Additional matters to be determined;

A. Summary of the respondent's main defense

The instant application is seeking a provisional disposition ordering a doctor's statement. According to Article 263(1) of the Civil Execution Act, even if a judgment ordering a declaration of intent is deemed to have made a declaration of intent only when the judgment ordering a declaration of intent becomes final and conclusive, the provisional disposition ordering a doctor's statement is unlawful since it deviates from the original purpose of the provisional disposition to temporarily exclude the current risk and position that may arise to the creditor against the dispute over the legal relationship, and thus, it constitutes a satisfactory provisional disposition intending to take the effect of a declaration of intent that may be obtained at the time of confirmation of the principal lawsuit lawsuit or at the time of confirmation of the principal lawsuit, and it is not permissible since it is not possible to reinstate

B. Determination

In light of the above, it is difficult to conclude that the above provision is permissible only when the existence of an obligation is proved and the final judgment is in the form of final judgment, as long as a satisfactory provisional disposition that temporarily forms the same legal relationship as the content to be sought through a judgment on the merits is permitted, it is difficult to consider the existence of the above provision as grounds for denying provisional disposition that orders the existence of an obligee to make a statement on the merits. (2) Meanwhile, in the case of satisfactory provisional disposition, it becomes the same result as obtaining the obligee’s right ultimately satisfactory before the judgment on the merits, while, in light of the above, it is difficult to require the obligor to provide an opportunity to see the above provisional disposition through a lawsuit on the merits to the extent that the obligee’s right is greater than that of obtaining a final judgment on the merits. In light of the above, it is difficult to view that the above provisional disposition, which is a satisfactory one of the above provisional dispositions, would not have an effect to order the obligee’s right to make a statement on the grounds that it would not have any effect of provisional disposition that is an inherent in the obligee’s right to make a final provisional disposition.

3. Conclusion

Therefore, the decision of the first instance court is legitimate, and all appeals by the applicants are dismissed. It is so decided as per Disposition.

Judges Lee Sang-sung (Presiding Judge)