Whether the additional collection, which is a kind of property punishment, can be preserved by the order of provisional seizure under the Criminal Code

The additional collection, which is a kind of property type under criminal law, can not be seen as being subject to the protection of rights through civil procedure even if the judgment of the criminal court, which imposed the additional collection, becomes final or the prosecutor's order to execute it can bring the same effect as the financial name, and thus, it cannot be viewed as being preserved by the provisional attachment order.

Article 696 of the Civil Procedure Act

Supreme Court Decision 71Da1588 delivered on October 11, 1971 (Supreme Court Decision 9845 delivered on September 11, 197, Supreme Court Decision 193Do38 delivered on June 28, 197, Supreme Court Decision 193Do38 delivered on June 20, 2007

Applicant

Korea

Seoul Central District Court (70Ka4674) of the first instance court

Supreme Court Decision 70Da2783 Delivered on March 9, 1971

The original judgment shall be revoked.

The decision of provisional seizure made on February 20, 1970 on the case of provisional seizure order between the respondent (creditor) and the applicant (debtor) shall be revoked.

All costs of the lawsuit shall be borne by the respondent.

A provisional execution may be effected only under the above two paragraphs.

The applicant's attorney is the same judgment as the disposition.

(1) On February 20, 1970, the Republic of Korea filed an application for a provisional seizure order with the applicant as a creditor, and issued a provisional seizure order with respect to the claim stated in the separate sheet of the applicant as a third-party obligor listed in the separate sheet of the Seoul District Court as the case from the Seoul District Court to 70Ka2282. On February 20, 1970, the debtor, after the provisional seizure order was issued, the provisional seizure order was issued on March 3, 1970 as the case from 70Ka2726 case from which the applicant applied for the lawsuit and the order was delivered to the above Republic of Korea as the creditor on March 9, 1970, there is no dispute between the parties.

(2) On July 1, 1969, the respondent asserted that the provisional attachment order should be revoked since the Republic of Korea did not file a lawsuit on the merits until the expiration of the period designated in the above order to file a lawsuit, and the respondent was sentenced to a criminal judgment to additionally collect the amount of KRW 47,974,477 from the applicant, such as the defendant's violation of the Customs Act, which became the defendant on July 1, 1969. Since the above provisional attachment order is still pending in full, it does not require the filing of a lawsuit based on other civil procedures. As such, the respondent's application is groundless and the respondent's right to preserve the provisional attachment order is related to the execution of the property type of the additional collection sentenced in the criminal judgment, so the provisional attachment under the Civil Procedure Act is the so-called right to be preserved, and it is difficult to view the provisional attachment order as the property type as the right to preserve the rights of the prosecutor, even if it becomes final and conclusive, or the order to preserve the rights of the prosecutor is not effective in the civil procedure.

Therefore, as the respondent's assertion, this case's provisional seizure order, which is a kind of property punishment, as well as this case's provisional seizure order, where a criminal trial on the above provisional seizure is pending in Seoul High Court, cannot be deemed to fall under the same criminal procedure. Thus, this case's criminal procedure cannot be deemed to be a lawsuit corresponding to this case's provisional seizure order since it is no other lawsuit, and since the respondent did not institute a lawsuit on the merits until the expiration of the designated period even after receiving the above order, and the respondent did not institute a lawsuit on the merits until the expiration of the designated period, so the applicant's request for revocation of provisional seizure on the ground of this case's expiration of the period of filing the lawsuit is reasonable, and therefore, it is unfair in the original judgment that different from this conclusion, it is revoked by Article 386 of the Civil Procedure Act, and it is so decided as per Disposition by applying Article 96 and Article 89 of the same Act with respect to the burden of litigation costs.

Judges Jeon Soo-chul (Presiding Judge)