[1] In a case of an objection or revocation against a preservation order, the law applicable to the statutory period that began before the enforcement of the Civil Execution Act amended by Act No. 7358 of Jan. 27, 2005 (=the former Civil Execution Act) and the statutory period that began after the enforcement of the amended Civil Execution Act (=the amended Civil Execution Act)

[2] In a case where an application for provisional disposition for discontinuance of construction was filed before the enforcement of the Civil Execution Act amended by Act No. 7358 of Jan. 27, 2005, and a decision of provisional disposition citing it was issued after the enforcement of the amended Civil Execution Act, and the debtor sought a provisional disposition on the ground that the period for filing a lawsuit on the merits was expired, the case holding that the decision of provisional disposition should be revoked on the ground that no lawsuit on the merits was filed within the three-year period for filing a lawsuit on the merits under Article 288 (1) 3 of the amended Civil Execution Act

[1] Article 288(1)3 of the Civil Execution Act (hereinafter “amended Civil Execution Act”) which was amended by Act No. 7358 of Jan. 27, 2005 and enforced as of Jul. 28, 2005 provides that “when a lawsuit is not filed within three years after provisional seizure is executed,” an obligor may file an application for cancellation of provisional seizure. This provision is applicable to the case before enforcement of the former Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005; hereinafter “former Civil Execution Act”) with respect to the period of filing a lawsuit within five years prior to enforcement of the former Civil Execution Act. In principle, Article 28(1)3 of the Addenda of the Civil Execution Act provides that “Where an application for cancellation of the amended Civil Execution Act is made within the period of 0 years prior to enforcement of the former Civil Execution Act, the period of filing a lawsuit shall be 5 years prior to enforcement of the amended Civil Execution Act, which shall be subject to the provisions of the former amended Rules No. 25 of the Civil Execution Act.

[2] The case holding that in a case where a debtor requested provisional disposition prior to the enforcement of the Civil Execution Act (amended by Act No. 7358, Jan. 27, 2005; hereinafter "the amended Civil Execution Act") which cited the provisional disposition after the enforcement of the amended Civil Execution Act; and thereafter the debtor requested provisional disposition for the expiration of the period for filing a lawsuit on the merits, the above provisional disposition order is an order of omission and its effect takes effect upon notification to the debtor; unless there are any circumstances suggesting that the debtor continued to commit an act violating the obligation of omission at the time of the provisional disposition, it shall be deemed that the period for filing a lawsuit on the merits was in the same state as that of the actual execution at the time of the provisional disposition; thus, the period for filing a lawsuit on the merits shall be applied to the above provisional disposition case for which the period for filing a lawsuit on the merits began after the amended Civil Procedure Act enters into force, and the period for filing a lawsuit on the merits shall be revoked on the ground that the lawsuit on the merits was not filed within such period.

[1] Article 28(4) of the former Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005), Article 288(1)3 and Article 301 of the Civil Execution Act, Article 2 of the Addenda of the Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005), Article 3 of the Addenda of the Civil Execution Rule (amended by Act No. 7358 of Jul. 28, 2005) / [2] Article 288(4) of the former Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005), Article 2 of the Addenda of the Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005), Article 3 of the Addenda of the Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005)

continental Mining Co., Ltd. (Bae & Yang LLC, Attorneys Lee Young-min et al., Counsel for the defendant-appellant)

Respondent 1 and 329 others (Law Firm Loex, Attorneys Kim Dong-dong et al., Counsel for the defendant-appellant)

Daejeon High Court Order 2009Kahap11 dated November 3, 2010

All reappeals are dismissed.

The grounds of reappeal are examined.

1. The Civil Execution Act amended by Act No. 7358 of Jan. 27, 2005 and enforced from July 28, 2005 (hereinafter “amended Civil Execution Act”) allows a debtor to file an application for the revocation of provisional seizure in Article 288(1)3 applicable mutatis mutandis to provisional disposition under Article 301, “when a lawsuit on the merits has not been filed for three years after provisional seizure was executed,” which reduces the period for filing the lawsuit on the merits of Article 288(4) of the former Civil Execution Act (hereinafter “former Civil Execution Act”) from five years to three years.

In this regard, the amended Civil Execution Act is a transitional measure against a pending case in Article 2 of the Addenda, and provides that "any objection against the compulsory execution, preservation order, or cancellation order against a case or movable property in which an application for preservation was filed before this Act enters into force, shall be governed by the previous provisions of the Civil Execution Act: Provided, That where an application for appeal or cancellation is declared final and conclusive after this Act enters into force, it shall also be governed by the previous provisions," while Article 3 of the Addenda of the Civil Execution Rule amended by Supreme Court Regulation No. 1953 of July 28, 2005 provides that "The statutory period and its calculation that have been progress before the enforcement of the Act (amended by Act No. 7358 of Jan. 27, 2005) shall be governed by the previous provisions of the Civil Execution Act." In full view of these relevant provisions, the amended Civil Execution Act applies to a case of objection against the preservation order filed after this Act enters into force, while the former Civil Execution Act shall also apply to a legal relationship that had already started or commenced before the amendment.

According to the records, although the application for provisional disposition of this case was made on April 19, 2001, it can be known that the provisional disposition which cited it was issued on June 21, 2006 and delivered to the applicant who is the debtor on July 3, 2006. The provisional disposition order ordering the debtor to suspend construction works for prospecting and mining. The above provisional disposition order ordering the debtor to suspend construction works for prospecting and mining becomes effective by notifying the debtor of the contents of the order. Unless there are circumstances suggesting that the debtor continued to commit an act violating the duty of omission at the time of the provisional disposition order, the provisional disposition order has reached the same state as the actual execution at the time of the provisional disposition order, and therefore, the period of filing a lawsuit on the merits is in progress from that time. Accordingly, the law applicable to this case, which was commenced on July 3, 2006 after the enforcement of the revised Civil Execution Act, shall be three years under Article 288 (1) 3 of the amended Civil Execution Act.

Although the court below's reasoning on this issue is somewhat inappropriate, it is just that the court below should apply Article 288 (1) 3 of the revised Civil Execution Act to the case of the application for provisional disposition of this case, and thus the decision of provisional disposition of this case which did not file a lawsuit within three years as stipulated in the above provision should be revoked upon the debtor's application. In conclusion, it is not erroneous in the misapprehension of the transitional provisions as claimed by the re-appellant, which affected the decision.

2. The administrative litigation cannot be a principal lawsuit against the order for preservation under the Civil Execution Act. Thus, the court below is just in holding that the administrative litigation against the re-appellant seeking revocation of mining plan authorization disposition, etc. filed against the Cheongbuk-do Governor, etc. cannot be a principal lawsuit against the decision of provisional disposition of this case. In so doing, the court below did not err by misapprehending the legal principles as to the scope of the lawsuit which is the main

3. Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)