[1] The meaning of "a seizure, provisional seizure or provisional disposition is revoked at the request of the right holder" and "no effect of the interruption of prescription" under Article 175 of the Civil Code

[2] Whether the legality of a seizure order and a collection order against a monetary claim and the withdrawal of a request should be determined respectively (affirmative)

[3] In case where the transferee of the claim under the title of execution after the seizure and collection order has not been granted the succeeded execution clause, whether the creditor may collect the seizure claim or withdraw the application for the seizure order from the status of the execution creditor (negative)

[1] Article 175 of the Civil Act / [2] Article 240 (1) of the Civil Execution Act, Article 175 of the Civil Act / [3] Articles 31 (1) and 57 of the Civil Execution Act, Article 23 of the Civil Execution Rule

[3] Supreme Court Decision 2005Da23889 Decided February 1, 2008 (Gong2008Sang, 287) Supreme Court Decision 2008Da32310 Decided August 11, 2008

Plaintiff (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

Defendant

Suwon District Court Decision 2009Na14532 decided July 8, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Article 168 Subparag. 2 of the Civil Act provides, “Attachment, provisional attachment or provisional disposition” as the cause interrupting the extinctive prescription, and Article 175 of the Civil Act provides, “Attachment, provisional attachment or provisional disposition shall not have the effect of interrupting prescription if it is revoked upon the request of the right holder or on the ground that it does not comply with the provisions of Acts.” In this context, the term “when it is revoked upon the request of the right holder” refers to cases where the right holder withdraws the application for attachment, provisional attachment or provisional disposition, and “the effect of interrupting prescription” refers to cases where the interruption

Meanwhile, even if an application for a seizure order against a monetary claim and a collection order, which is the method of cashing, is filed at the same time, the legality of the order shall be determined separately from the seizure order and the collection order, and the withdrawal of the application shall also be separately determined. The creditor may waive the right acquired by the collection order (Article 240(1) of the Civil Execution Act), but the waiver of the collection right does not affect the validity of the seizure. Therefore, the waiver of the collection right does not lose the validity of the interruption of the extinctive prescription due to the seizure, and the withdrawal of the request for the

The court below found on May 16, 200 that Nonparty 1 submitted the “written waiver of collection, original return of the original copy,” stating in the executing court on July 17, 2008 the declaration of intent to cancel the above claim seizure and collection order, and determined that the above claim seizure and collection order was cancelled upon the request of the right holder. Examining the reasoning of the judgment below in light of the records, the court below's fact-finding and judgment are justified.

In addition, according to the legal principles as seen earlier, the interruption of the extinctive prescription due to seizure is retroactively invalidated by Nonparty 1’s withdrawal of the application for seizure order by submitting the “written waiver of collection, original return of the original copy”.

The judgment of the court below to the same purport is just, and the grounds of appeal disputing this are not accepted.

2. In the compulsory execution procedure, in order to promote the official confirmation of legal relationship and the prompt and accurate realization thereof, the clarification and stability of the procedure should be emphasized. Thus, even if a person who succeeds to the status of a creditor holding an executive title, in order to apply for compulsory execution based on the existing executive title, a successor execution clause shall be granted pursuant to Article 31(1) of the Civil Execution Act (including the case applied mutatis mutandis pursuant to Article 57 of the same Act). Even if a successor succeeds to the status of an applicant creditor after the compulsory execution by executive title commenced, the successor shall submit the certified copy of the executive title with which the successor execution clause is attached to apply for compulsory execution on his/her own behalf, as stipulated under Article 23 of the Civil Execution Rule, and in such case, the junior administrative officer or the enforcement officer shall notify the debtor thereof. Accordingly, even if the creditor transferred the claim based on the executive title after receiving the seizure and collection order based on the executive title, if the transferee did not obtain the existing execution clause on his/her behalf, the transferee may still seize the creditor in the status of the execution creditor, or withdraw the claim.

According to the reasoning of the lower judgment, Nonparty 1 transferred to the Defendant the claim based on the instant payment order on July 15, 2008, but the Defendant, on July 21, 2008, obtained the succession execution clause against the instant payment order.

According to the above legal principles and facts, the non-party 1 still can collect the seizure claim or withdraw the application for the seizure order in the position of the executing creditor before the defendant obtains the succession execution clause against the payment order of this case. Therefore, the judgment of the court below that the above seizure and collection order of this case was lawfully revoked upon the claim of the rightful claimant is justified by submitting the "application for the waiver of collection or the original return of the original copy" stating the declaration of intent to cancel the seizure and collection order of July 17, 2008.

Therefore, the argument in the grounds of appeal disputing this cannot be accepted.

3. According to the reasoning of the judgment below, the court below is just in rejecting the assertion that Nonparty 2 approved the obligation based on the instant payment order on the grounds as stated in its reasoning, and the allegation in the grounds of appeal disputing this cannot be accepted as disputing a legitimate fact-finding by the fact-finding

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)