Whether the decision of provisional seizure remains effective in cases where the registration of provisional seizure is cancelled ex officio after a decision of provisional seizure on real estate and the registration of provisional seizure based thereon has been completed (affirmative), and whether the debtor or interested person may apply for revocation of provisional seizure under Article 288 (1) 3 of the Civil Execution Act as long as the decision of provisional seizure remains valid regardless of existence of provisional seizure execution and the interest in the application is beneficial (affirmative)

Articles 91(2), 268, 276, 288(1)3, and 293 of the Civil Execution Act

Applicant

heir 1 et al. of the deceased 1 et al.

Daejeon District Court Order 2018Ra221 dated November 12, 2018

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

The grounds of reappeal are examined.

1. After a decision of provisional seizure on real estate has been made and the registration of provisional seizure has been completed based thereon, even if the registration of provisional seizure is revoked ex officio after the sale of real estate in the auction procedure other than the execution procedure based on the relevant provisional seizure, the decision of provisional seizure remains effective. Therefore, the debtor or interested person may apply for revocation of provisional seizure pursuant to Article 288 (1) 3 of the Civil Execution Act as long as the decision of provisional seizure is valid regardless of whether the execution of provisional seizure is in existence

2. The record reveals the following facts.

A. Nonparty 1 (Death on August 9, 201) filed an application for provisional seizure of the instant real estate with respect to the instant real estate as Seosan Branch of the Daejeon District Court 2008Kadan1853, Seosan Branch of the Daejeon District Court on October 22, 2008 (hereinafter “the provisional seizure of this case”), and the provisional seizure registration of the instant real estate was completed on the same day.

B. On August 7, 2017, the instant real estate was sold, and the provisional attachment registration of this case was revoked on the same day, when the auction procedure for exercising the security right (hereinafter “instant auction procedure”) was in progress with respect to the instant real estate at Seosan Branch of the Daejeon District Court around 2016, 2654, and around 2016, 10952.

C. In the instant auction procedure, on September 1, 2017, the court prepared a distribution schedule with the content of distributing KRW 171,671,169, and KRW 20,819,122 to the Taedodo Credit Cooperative (hereinafter referred to as the “BB”) in the order of 171,671,169, and KRW 20 to 1,819,122, to the Re-Appellants, 147,889,523, to the Re-Appellants, and 60,301,70 to the Non-Appellants

3. Examining the above facts in light of the legal principles as seen earlier, even if the instant real estate was sold in the auction procedure and the registration of provisional seizure was cancelled ex officio, the validity of the instant provisional seizure itself remains. Therefore, barring any special circumstance, interested parties may apply for the cancellation of provisional seizure on the ground of “when a lawsuit is not filed within three years after the provisional seizure was executed” under Article 288(1)3 of the Civil Execution Act. In particular, as long as the dividends distributed in the name of Nonparty 1 is still deposited in the auction procedure for the instant real estate, where the provisional seizure order is revoked, additional dividends may be paid to the dividends. Therefore, it is reasonable to view that the re-appellant, as interested parties, has the interest to seek the cancellation of the provisional seizure order against the deceased Nonparty 1’s heir.

Nevertheless, the lower court determined that the applicant has no interest in seeking revocation of the provisional attachment decision of this case, as the registration of this case was cancelled on the same day as the grounds of sale due to voluntary auction on August 7, 2017. In so determining, the lower court erred by misapprehending the legal doctrine on the interests of the application for revocation of provisional attachment. The allegation in the grounds of reappeal assigning this error is

4. 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 Park Sang-ok (Presiding Justice)