Whether a person who lends money to a debtor for the purpose of the provisional seizure cancellation of provisional seizure may claim the effect of seizure or provisional seizure against the debtor's right to claim the collection of the deposit from the provisional seizure based on the loan (negative)

In light of the purport of the provisional seizure cancellation system by deposit of the amount of damage from provisional seizure, since the profits which can be enjoyed by the creditor of provisional seizure shall not be infringed by the cancellation of provisional seizure, the person who lent the money to the debtor of provisional seizure for the purpose of the provisional seizure deposit, so that the execution of provisional seizure may be revoked by lending the money to the creditor of provisional seizure for the purpose of the provisional seizure deposit, even though the debtor of provisional seizure is the creditor of provisional seizure, the effect of seizure or provisional seizure by the above loan cannot be asserted,

Articles 696, 702, and 713 of the Civil Procedure Act

Plaintiff 1 and one other (Attorney Park Jong-ok, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Young-chul et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 94Na8326 delivered on June 13, 1997

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below rejected the plaintiffs' claim of 1,797,829,789 won as preserved claim against the non-party 1 on February 24, 1993. The above non-party 1 deposited provisional seizure deposit amount of 1,797,829,789 won at the same court on March 2, 199. The court below rejected the defendant's claim of 90 won as 99 of the above provisional seizure against the non-party 1 for the above non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's above non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's above non-party 1's non-party 1's non-party 9'

In light of the records, the fact-finding and decision of the court below shall be justified, and there is no error of law by misunderstanding the facts against the rules of evidence, such as the theory of lawsuit. The arguments are without merit.

2. Regarding ground of appeal No. 2

In light of the purport of the provisional seizure cancellation system by deposit of the amount of damage from provisional seizure, profits which can be enjoyed by the creditor of provisional seizure shall not be infringed by the cancellation of provisional seizure. Therefore, even if the debtor of provisional seizure is the creditor of provisional seizure, the person who lent the amount to the debtor of provisional seizure for the purpose of the provisional seizure deposit, to revoke the provisional seizure execution, shall not claim the effect of seizure or provisional seizure by the above loan claim against the creditor of provisional seizure, unless there are special circumstances.

According to the records, the above non-party 1 used 1,20,000,000 won borrowed from the defendant as part of the amount for the cancellation of the execution of provisional seizure of the above shares, and the defendant also knew that it would have been used for this purpose at the time of lending the above amount. Thus, even if the defendant was ordered to seize the claim against the above claim as the creditor of the above loan against the above non-party 1, the claim was generated by lending the money for the purpose of the provisional seizure of the above shares, so long as the claim was incurred by lending the money for the purpose of the cancellation of the execution of provisional seizure of the above shares, the above claim cannot be claimed as a dividend in the distribution procedure for the above claim against the plaintiffs.

Nevertheless, the court below's decision that the distribution should be made in proportion to the amount of the claims against the plaintiffs and the defendant in the distribution procedure for the above claim for the recovery of the deposit amount is erroneous in the misunderstanding of legal principles as to the nature of the deposit at sea or the validity of the demand for distribution, which affected the conclusion of the judgment. Therefore, the ground for appeal pointing this out has merit.

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)