[1] The limitation to change the right to be preserved in the procedure of a provisional seizure

[2] In a case where the preserved right to be changed in the procedure of provisional seizure did not have yet occurred at the time of provisional seizure, or a third party has an interest in the subject matter, whether the preserved right should be changed (affirmative)

[1] The provisional seizure order does not require the strict conformity between the preserved right under the provisional seizure order and the right which is the subject matter of the lawsuit on the merits, and the provisional seizure order is valid as long as the identity of the basis of the claim is recognized. The application for provisional seizure is an urgent necessity and is filed without sufficient time to sufficiently review and determine the legal composition of the preserved right and the relationship of evidence. Unless there are special circumstances, such as that the application for provisional seizure is filed for provisional seizure on the ground of the preserved right clearly free from the parties, the procedure of objection against provisional seizure may also change the preserved right in the reasons for the application.

[2] Since provisional seizure is necessary to authorize provisional seizure as long as the requirements of the preserved right have been met by the time the provisional seizure is closed at the trial, even if the right added to the preserved right has not yet occurred at the time of the judgment of provisional seizure, it may be changed to the preserved right, and even if a third party has a legal interest in the object of provisional seizure, the third party acquires the right under the premise that there is a limitation on the right by provisional seizure. Thus, it cannot be viewed differently in such a case.

[1] Articles 235(1) and 704 of the Civil Procedure Act / [2] Articles 235(1), 703, and 704 of the Civil Procedure Act

[1] Supreme Court Decision 81Da1223, 81Meu91 (Gong1982, 433) Decided March 9, 1982, Supreme Court Decision 81Da1221, 1222, 81Meu9, 990 (Gong1982, 432), Supreme Court Decision 92Da24325 (Gong192, 2999) Decided September 25, 1992 / [2] Supreme Court Decision 93Da20870 (Gong193Ha, 2279), Supreme Court Decision 93Da60434, Apr. 29, 1994 (Gong1963, Apr. 13, 196)

The Republic of Korea People's Republic of Justice

Private Machinery Co., Ltd. (Seoul General Law Firm, Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 94Na1805 delivered on August 29, 1995

The appeal is dismissed. All costs of appeal are assessed against the respondent.

The grounds of appeal are examined.

With respect to the first and second points

According to the reasoning of the judgment of the court below, on February 10, 1993, the applicant alleged that he had a claim for acquisition of KRW 150,00,00 against the respondent for Hongsung branch of the Daejeon District Court, and for the preservation of its execution, he applied for provisional seizure on the real estate of this case owned by the respondent. On February 12, 1996, the above court decided to provisionally seize the real estate of this case with the applicant's claim of KRW 150,00,000 as preserved right. The applicant did not obtain the original copy of a promissorysory deed with a face value of KRW 150,00,00,00 from the non-party Co., Ltd. (hereinafter referred to as the "sub-public trust"), and the obligor did not obtain the original copy of the contract and the assignment order of all the claim of KRW 150,00,000 from the respondent for provisional seizure without the consent of the above respondent for the whole execution of the contract, and the court did not accept the assignment order of the above 100,06.

However, according to the records of this case, the purport of the respondent's assertion is not that the assignment order has no effect in violation of the special agreement against the prohibition of transfer, but that the claim against the respondent, which is the right to be preserved for the provisional seizure of this case, was not accrued due to the invalidation of the acquisition of the claim, and all the claim against the respondent against the respondent, did not have any preserved right at the time of the decision on provisional seizure of this case. In particular, in this case, since a third party acquired a collateral on the real estate before the assignment order was issued, it is obvious that the decision on provisional seizure of this case was unlawful due to the absence of the preserved right. However, the court below's determination on provisional seizure of this case cannot be said to have committed an unlawful act by misunderstanding the party's assertion that the court below rejected this decision solely on the above ground, and did not err in the misapprehension of the judgment (the respondent's assertion that there

However, the provisional seizure order does not require strict conformity with the right in the subject matter of the provisional seizure. The provisional seizure order's effect extends to the right in the subject matter of the provisional seizure as long as the identity of the subject matter of the claim is recognized (see, e.g., Supreme Court Decisions 81Da1223, 81Da2491, Mar. 9, 1982; 92Da24325, Sept. 25, 199). The provisional seizure order's application is due to an urgent need, and there is no time to sufficiently examine and determine the legal structure of the preserved right and the relationship between the secured right's claim and the secured right's claim's transfer and the secured right's secured right's secured right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's transferred right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right's guaranteed right'.

All arguments are without merit.

On the third ground for appeal

According to the records of this case, the applicant changed the right to be preserved for the provisional seizure in the procedure of the objection to the provisional seizure of this case into the entire deposit claim, and the court below judged the validity of the provisional seizure of this case on the premise that the right to be preserved for the entire deposit claim of this case has been changed into the entire deposit claim. Thus, the argument that the court below erred in the legal principles of the party disposition right by judging that the whole deposit claim which the applicant did not assert as the preserved right of this case is the preserved right of the provisional seizure of this case

On the fourth ground

In light of the above reasoning of the judgment of the court below, since the court below did not recognize that a claim for full payment was made prior to the provisional seizure, it cannot be admitted to the argument that there was an error in violation of the rules of evidence in the judgment of the court below. The court below erred in the misapprehension of the purport of the respondent's assertion, and the judgment of the court below was not made. Thus, we cannot accept the argument that there was an error in violation of the rules of evidence or in the misapprehension

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)