Applicant 1 and one other

Respondent

S. S. A.M.C.

Suwon District Court Order 2013Kadan10404 dated May 15, 2014

1. The decision of the first instance shall be revoked;

2. The motion for revocation of the provisional seizure of this case by the applicant 1 shall be dismissed.

3. Of the decision of provisional attachment on August 2, 2012, this Court rendered a provisional attachment order of KRW 50,000,000 among the Respondents and non-applicants 1,00,000, the provisional attachment order of KRW 50,000 is revoked.

1. Basic facts

According to the records, the following facts are recognized.

A. On August 2, 2012, the respondent filed an application for provisional seizure of real estate against Nonparty 1 (person other than the applicant for the decision of the Supreme Court) on the attached list No. 2012Kadan6631, which is owned by Nonparty 1 (hereinafter “instant real estate”), and received a decision of provisional seizure of real estate on August 2, 2012 (hereinafter “decision of provisional seizure”).

B. On November 7, 2013, the applicant, who is the creditor of the non-applicant No. 1, filed an application for an order of lawsuit with this court in accordance with the provisional attachment order by subrogation of the non-applicant No. 1. 2013Kaman2431. On November 7, 2013, the court issued an order of lawsuit with the purport that “if the creditor files a lawsuit on the merits of the provisional attachment and submits a document proving the continuation of the lawsuit or has already filed a lawsuit, the creditor shall submit the document proving the continuation of the lawsuit (hereinafter “instant order”) and the copy of the order of lawsuit was served on the respondent on November 11, 2013.

C. On November 27, 2013, the respondent filed a lawsuit seeking revocation of the fraudulent act against the non-applicant 1 on the ground that he/she acquired the claim against the non-applicant 1 on the grounds that he/she acquired the claim against the non-applicant 1, and on the same day, the respondent filed a lawsuit claiming revocation of the fraudulent act with the court No. 2013Da10304, and filed the filing report with

D. On May 15, 2014, the applicant filed an application for the revocation of provisional seizure of this case on the ground that the respondent did not comply with the order to file the lawsuit of this case. On May 15, 2014, the court of first instance rendered a decision dismissing the application for the revocation of provisional seizure of this case on the ground that there is no need for the preservation of the applicant to file the application for the revocation of provisional seizure on the ground that there is a lack of vindication

2. Determination as to the legitimacy of the request for revocation of provisional seizure of this case

A. Determination on the applicant 1’s application for revocation of provisional seizure

In light of the records, the applicant 1 applied for the issuance of the order to file a complaint against the respondent prior to the provisional attachment cancellation of this case, since the right to file an application for the issuance of the order to file a complaint on the merits under Article 287 (1) of the Civil Execution Act is a prerequisite for exercising the right to file a complaint against the provisional attachment or provisional disposition (see Supreme Court Order 93Ma1655, Dec. 27, 1993). Thus, the applicant 1 applied for the issuance of the order to file a complaint against the respondent prior to the provisional attachment cancellation

B. Determination on the applicant 2 (applicant for the Supreme Court Decision)’s motion for revocation of provisional seizure

(1) The parties' assertion

The respondent asserts that the provisional attachment cancellation application of this case is unlawful, since the provisional attachment registration of this case was cancelled due to the termination of compulsory execution against the real estate of this case, there is no benefit to seek revocation of the provisional attachment decision of this

On the other hand, in light of the fact that the applicant 2 was paid only part of the principal in the compulsory execution procedure against the real estate owned by the non-applicant 1 and his husband and the non-applicant 2, and the respondent succeeding intervenor filed a lawsuit for revocation of fraudulent act against the non-applicant 1, the non-applicant 2 is proved to be insolvent by the non-applicant 1, the first instance court's decision dismissing the application for revocation

(2) Determination

According to the records, the procedure for compulsory auction was initiated at the court No. 2012, 66203 on the real estate in this case, and the provisional seizure registration pursuant to the decision of provisional seizure in this case was cancelled due to the sale to a third party in accordance with the procedure. However, in the distribution procedure of the compulsory execution, it is recognized that the respondent's successor to the creditor in this case was the respondent's transferee of the claim in this case, and the distribution schedule was prepared with the content of receiving dividends of KRW 7,427,096 on the basis of the decision of provisional seizure in this case.

In addition, according to the records, the respondent's succeeding intervenor filed a lawsuit for revocation of fraudulent act and restitution claim against non-applicant 1 on April 29, 2014 by the court 2013da103304, and the judgment in favor of the plaintiff was rendered. In the compulsory auction procedure conducted on the real estate of this case, the petitioner 1 received only KRW 60,47,577 out of the principal of the claim 194,902,434 won, and the petitioner 2 received only KRW 40,106,321 out of KRW 136,939,491, and the non-applicant 1 received only KRW 40,106,321 out of the principal of the claim, and in light of such vindication, the non-applicant 1 at the time of the provisional seizure application of this case is deemed insolvent, and thus, the applicant 2 who is the creditor of the non-applicant 1 on April 29, 2014 needs to preserve the claim of this case.

3. Determination as to whether the motion for revocation of provisional seizure in this case is justifiable

A. The assertion

The petitioner 2 asserts that ① the respondent succeeded to the lawsuit filed by the respondent with the claim that the respondent was transferred to the non-applicant 1, but the notification of the assignment of the claim to the non-applicant 1 was not notified to the non-applicant 1 until now, and ② the respondent succeeded to the lawsuit filed by the respondent non-applicant 1 until the plaintiff reaches the non-applicant 1 on December 16, 2013, the respondent's successor to the lawsuit does not have the standing to sue, and thus, the respondent's filing of the lawsuit and the submission of the certificate of the lawsuit cannot be deemed legitimate in response to the order of this case.

B. Determination

The record reveals that the respondent entered into a contract with the intervenor succeeding to the respondent on November 14, 2013 to transfer KRW 50,000,000 of the claim amount of the provisional attachment decision of this case between the respondent and the intervenor succeeding to the respondent on the same day, and sent the fact to the non-applicant 1 by means of content-proof mail on the same day, but the notification is impossible due to the addressee's unknown on November 15, 2013, and it is proved that the non-applicant 1 was unable to receive the notification, and there is no evidence to prove that the respondent notified the non-applicant 1 of the fact of the assignment of the claim within the litigation period stipulated in the order of this case (According to the record, the respondent is notified to the non-applicant 1 on May 21, 2014 and the next notification was delivered to the non-applicant 1, but the opposing power based on the notification does not occur retroactively from the time the notification was made and at the time of the transfer of claim).

Therefore, the Respondent's report of the lawsuit filed by the Respondent's successor was made with the absence of opposing power against the assignment of claims against the non-party 1, and thus, it cannot be deemed a legitimate report of the lawsuit, and there is no other evidence to recognize that the Respondent filed a lawsuit within the period stipulated in the order of the lawsuit of this case or submitted documents proving the fact that the lawsuit has been pending, so the provisional attachment decision of this case should be revoked in accordance with Article 287

4. Conclusion

Therefore, the decision of the court of first instance is unfair in conclusion, so the decision of the court of first instance is revoked, and the applicant 1's application for revocation of provisional seizure is unlawful and dismissed, and the applicant 2's application for revocation of provisional seizure is accepted, and it is so decided as per the Disposition.

[Attachment Form Omission of Indication of Real Estate]

Judges Sung Chang-ho (Presiding Judge)