In case where a creditor who has taken a preservative measure based on a promissory note Notarial Deed receives an order to bring an action on the merits, whether or not the creditor has to bring an action on the merits (negative)

Since provisional seizure, which is a preservative measure, is a system aimed at preserving compulsory execution as well as the realization of the right on the merits, if there is a title of debt, which is the basis of compulsory execution, it is considered that there is no need to again file a lawsuit on the merits with the creditor. In order for the debtor to dispute the existence of the preserved right, it is necessary for him to file a lawsuit on the objection of claim against the title of debt, and the deed of promissory note stating the statement on acceptance of execution also

Article 705 of the Civil Procedure Act

Change of Military Relations

Kang Dong-gu

1. The petitioner's application of this case is dismissed.

2. Litigation costs shall be borne by the applicant;

The provisional seizure order rendered by this Court as of October 12, 1994 shall be revoked with respect to the case of an application for provisional seizure against immovables 94Kadan7145 between the claimant and the respondent. The costs of lawsuit shall be borne by the respondent and the provisional execution order shall be revoked.

1. In the case of provisional seizure against real estate of 94Kadan7145 on October 12, 1994 for the purpose of preserving its enforcement on the ground that the respondent had a promissory note claim, which is the place of payment of the place of payment on September 28, 1994, the date of issue of 2,400,000 won at face value to the applicant, which was September 8, 1994, the respondent made a provisional seizure decision as stated in the attached list for the purpose of preserving its enforcement on October 12, 1994 as to the above real estate owned by the applicant. The applicant for the provisional seizure around July 8, 1995, as the party member 95Kada844 applied for an order of provisional seizure against the above real estate and received the order within seven days from the payment date of the place of payment on September 13, 1995, the respondent did not have any special dispute between the parties to the above order and the original copy of the order shall not be revoked.

2. However, the respondent asserts that a lawsuit may not be brought again in accordance with the above order of lawsuit because the respondent has already already been filed against the applicant as to the promissory note claim, which is the preserved claim of the above provisional seizure. Thus, in full view of the contents stated in Eul No. 1 (notarial deed) the whole purport of oral argument, the respondent's assertion that the promissory note stated in Dobong-gu Seoul Metropolitan Government as the place of payment on September 28, 1994 at the place of payment on the date of payment on September 28, 1994, is a notarial deed No. 1994,4301, which is a notarial deed, which is the secured claim of the above provisional seizure against the applicant, a notary public does not raise any objection even if he is immediately subject to compulsory execution (the applicant of the provisional seizure of this case shall submit a copy of the promissory note without submitting a notarial deed as evidence of the preserved right at the time of the application of the provisional seizure of this case). Thus, the claimant's assertion that the above claim should be subject to compulsory execution and preservation of the right should be justified.

3. Therefore, the application of this case seeking revocation of the provisional seizure order of the above real estate is dismissed, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the ground that the respondent was served the original copy of the above order of lawsuit and did not bring the lawsuit within the period of lawsuit

Judges Kang Jae-chul