In the objection procedure against provisional disposition, whether the creditor is allowed to expand or change the purport of the application for provisional disposition (negative)

The procedure of an objection to a provisional disposition is an objection procedure acknowledged for a debtor whose disposal of the property has been restricted by the provisional disposition, and it is extremely favorable for creditors as a result of allowing the utilization of the provisional disposition in accordance with the contents of the execution. The current Civil Execution Act provides that not only the procedure of issuing the provisional disposition, but also the procedure of an objection may be deliberated on the date of examination, by a ruling, and if it is not made on the date of pleadings, it shall be possible to state only the summary of the reasons. In applying mutatis mutandis to a change in the purpose of an objection to the provisional disposition in the Civil Procedure Act, it is necessary to separately determine the identity of the basis of the provisional disposition, and further, it is not compatible with the basic nature of the procedure as a result of a dispute between the parties on it, and it is not possible for creditors to sufficiently achieve the purpose of the provisional disposition upon the request of a new provisional disposition, and any change in the contents or scope of the provisional disposition to which the provisional disposition has already been issued may not be made in light of the contents or the purpose of the original decision.

Articles 283, 286, and 301 of the Civil Execution Act

[Defendant-Appellee] Plaintiff 1 and 2 others

The debtor

Seoul High Court Order 2009Ra1039 dated February 1, 2010

The reappeal is dismissed.

The grounds of reappeal are examined.

The procedure of an objection to a provisional disposition is an objection procedure acknowledged for a debtor whose disposal of property has been restricted by the provisional disposition, which is an immediate execution procedure for the debtor who has already been issued with an order of provisional disposition, and allowing the alteration of the purport of an application by a creditor in such procedure can result in allowing the utilization of a preservative measure according to the contents of execution. The current Civil Execution Act provides that not only the procedure of issuing a provisional disposition but also the procedure of objection may be deliberated on the date of examination, by a ruling, and if it has not gone through pleadings, it shall be decided to state only the summary of the reasons (see Articles 286 and 301 of the Civil Execution Act, etc.). Thus, in applying mutatis mutandis the procedure of an objection to a change in the purport of an application for provisional disposition in the Civil Procedure Act, the determination of identity as to the basis of the application for provisional disposition is separately required, and further, it is not compatible with the fundamental nature of the procedure as long as there is a dispute between the parties, and the alteration of the purpose of an application for provisional disposition can be sufficiently restricted from the original decision or new scope of provisional disposition.

According to the reasoning of the order of the court below, the court below revoked the first instance court decision that changed the provisional disposition decision of this case in accordance with the changed purport and dismissed the creditor's application for the changed provisional disposition on the ground that it is not permissible to allow the creditor to expand the form of action seeking prohibition due to the provisional disposition in the procedure of raising an objection against the provisional disposition of this case which was already issued, and to change the purpose of the application as to the alteration of the object of the provisional disposition of this case, and there is no error of law by misunderstanding the legal principles as to the alteration of the purport of

The Supreme Court Decision 95Da45224 delivered on February 27, 1996 cited in the grounds for re-appeal is a different issue as to the change of the preserved right in the grounds for re-appeal in the procedure of raising an objection against provisional seizure, and thus, cannot be invoked in the instant case.

On the other hand, the first instance court did not hold a trial to authorize, modify, or revoke all or part of the decision of provisional disposition of this case in the objection procedure which was previously conducted while making a decision to modify the decision of provisional disposition of this case in accordance with the purport of the above modification. Thus, the first instance court points out that deliberation and trial in the above objection procedure should be completed.

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

Justices Ahn Dai-hee (Presiding Justice)