Whether a provisional seizure creditor who has received an order to institute a suit on the merits shall cancel the provisional seizure order in cases where he/she has filed a suit on the merits within the period fixed in the order to institute the suit, and thereafter has withdrawn the suit after the expiration of such period (affirmative)

Article 287 of the Civil Execution Act

Supreme Court Order 2003Ma793 Decided June 18, 2003 (Gong2003Ha, 1678) Supreme Court Order 2003Ma1209 Decided August 22, 2003 (Gong2003Ha, 196)

Seoul High Logistics Center and 1 other

C. S&C Co., Ltd.

Suwon District Court Order 2007Ra404 dated February 4, 2008

The order of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of reappeal are examined.

On January 2, 2007, the court below issued an order to file a lawsuit within 14 days from the date on which the respondent served a notice of the order to submit documents evidencing the order. On January 17, 2007, the court below filed a lawsuit seeking payment of 187,464,800 won of material price claim, which is the right to preserve the provisional attachment decision of this case on the real estate owned by the applicant, and submitted the receipt certificate to the first court. On April 3, 2007, the court below revoked the claim's claim amount and the basic factual relations of the accrual of the claim amount were the same as the claim amount and the claim amount were different from the original claim amount. In addition, the applicant's claim was revoked on June 19, 2007, and the applicant's claim was revoked on the ground that the provisional attachment decision of this case was revoked on June 17, 2007, the court below revoked the claim of this case prior to the revocation of the provisional attachment decision of this case.

However, the provisional seizure under Article 287 of the Civil Execution Act is a system that revokes provisional seizure by ordering an obligee to file a lawsuit on the merits of the case within a fixed period, and where an obligee fails to submit a document evidencing that he/she filed a lawsuit on the merits of the case within a fixed period, or where an obligee has presented a document evidencing that he/she filed a lawsuit on the merits of the case within a certain period, and the lawsuit on the merits has been withdrawn or rejected, and where an obligee fails to file a lawsuit on the merits of the case within a fixed period or to submit a document evidencing such facts within a fixed period, the court shall revoke the provisional seizure, and even where an obligee fails to submit a document evidencing such facts to the court within a fixed period, even if the obligee has filed a lawsuit on the merits of the case within a fixed period or continued to file a lawsuit, the provisional seizure shall be revoked (see Supreme Court Order 2003Ma793, Jun. 18, 2003; Supreme Court Order 2003Ma1209, Aug. 22, 2003).

The circumstances cited by the court below as such can be a ground for rejecting a request for revocation of provisional seizure due to changes in circumstances as stipulated in Article 288(1) of the Civil Execution Act, and it cannot be a ground for rejecting a request for revocation of provisional seizure due to a failure to comply with an order to file a lawsuit as stipulated in Article 287 of the Civil Execution Act, which strictly provides the requirements and effects of the violation. From the standpoint of the respondent, instead of withdrawing a lawsuit on the merits, it is possible to resolve the inconsistency between the preserved right of the provisional seizure decision and the subject-matter of the lawsuit on the merits by changing the purport of the claim or the cause of the claim to the extent that the identity of the basis of the claim is recognized. Therefore, the above conclusion cannot

Therefore, the provisional attachment of this case is to be cancelled because it falls under the case where the principal claim is not filed within the period specified in the order to file a lawsuit under Article 287 (4) of the Civil Execution Act, but the decision of the court below which judged otherwise is erroneous in the misunderstanding of legal principles as to the revocation of provisional attachment due to non-compliance

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.

Justices Cha Han-sung (Presiding Justice)