Korea Deposit Insurance Corporation in Bankruptcy;

K&C Co., Ltd. (Law Firm Hanl, Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Debtor (Attorney Kim Shin-chul, Counsel for defendant-appellant)

Daejeon District Court Order 2011Kahap997 dated April 26, 2012

1. All appeals filed by creditors and debtors are dismissed;

2. The costs of appeal shall be borne by the obligee and the obligor each half.

1. Purport of request;

Succession Intervenor: On January 27, 2003, the Daejeon District Court authorized the provisional attachment order (hereinafter “the provisional attachment order of this case”) made on each real estate listed in the separate sheet on January 27, 2003 by the Daejeon District Court as to the case of application for provisional attachment of real estate No. 2003Kahap110 between the creditor(s) and the debtor.

The debtor: Revocation of the provisional attachment decision of this case, and the motion for provisional attachment by the creditor (ex officio) is dismissed.

2. Purport of the appeal by the succeeding intervenor;

The provisional attachment decision of this case shall be cancelled and authorized.

3. Purport of the debtor's appeal;

The decision of the first instance court is revoked, and the creditor's application for provisional seizure is dismissed.

1. Basic facts supporting the records;

A. On August 3, 199, the creditor (Withdrawal) filed an application against the debtor for provisional seizure of real estate at Daejeon District Court 2003Kahap110, Daejeon District Court as the preserved right. On January 27, 2003, the Daejeon District Court accepted the application and rendered the provisional seizure of each real estate as stated in the separate sheet (hereinafter “instant real estate”).

B. The debtor filed an application for an objection to provisional attachment with Daejeon District Court No. 2005Kahap1385. On May 30, 2006, the Daejeon District Court approved the provisional attachment order on the ground that the real estate listed in paragraph (1) of the attached Table No. 1 and the real estate listed in paragraph (2) of the attached Table No. 2 of the attached Table No. 1 and the real estate No. 246.4m2 of the attached Table No. 2 of the provisional attachment order of this case constitute the property prohibited from seizure stipulated in the Private School Act as the land owner or the original owner of the kindergarten. On the other hand, the provisional attachment order of this part was approved on the ground that the land No. 246.4m2 of the attached Table No. 2 of the attached Table No. 2 of the Korea Association of Gisung is being used as the "Korean

C. Since November 9, 2007, the debtor filed an objection against provisional attachment with the Daejeon District Court on the ground that the part of the instant branch was used as a kindergarten teacher after the provisional attachment decision (No. 2007Kahap1547, 2008Kahap289, 2010Kahap463), but the above court rejected the debtor's objection on the ground that, inasmuch as the part of the instant branch was used as the above "Seoul High Court" at the time of the provisional attachment decision, even if the part of the instant branch was used as a kindergarten thereafter, it is difficult to view that the purport of the Private School Act provisions is retroactively null and void even if the part of the instant branch was used as a kindergarten. The debtor, on the ground that the instant branch was used as a kindergarten at the time of the provisional attachment decision (No. 2011Kahap4566), it did not accept such objection (No. 2016).

D. On September 23, 2011, a creditor (Withdrawal) transferred a claim for a loan to a debtor to a succeeding intervenor. On October 19, 2011, the notification of the assignment of claims was sent to a debtor and served around that time. On October 27, 2011, an succeeding intervenor filed an application for intervention in the Daejeon District Court. On October 27, 201, a creditor (Withdrawal) withdrawn from a lawsuit on October 28, 201, and the debtor consented thereto.

2. Summary of reasons for appeal;

(a) The grounds for appeal by the succeeding intervenor;

1) The part on the instant ground floor is structurally separated from the part on the 10th and the 2nd floor of the instant real estate, and the branch of the instant ground floor may be the object of sectional ownership since it was an independent state of church. Thus, provisional seizure is conducted only on the part on the instant ground floor, and it cannot be deemed that it goes against the principle of the right of sunshine.

2) Considering the fact that a provisional attachment is a means to urge a debtor to repay obligations by imposing psychological pressure on the obligor, and the fact that the designation of a kindergarten on the instant building can commence compulsory execution when the designation of a kindergarten is cancelled, it cannot be deemed that there is no need to preserve the said provisional attachment solely on the ground that a real compulsory execution is not carried out.

(b) Reasons for appeal by the debtor;

Although the first instance court determined that the provisional attachment decision in this case should be revoked because it is not recognized as a need to preserve it, it is improper to add the provisional attachment condition of KRW 120,000 to the cancellation of the provisional attachment decision.

3. Determination

A. Whether the provisional attachment decision of this case is legitimate

Comprehensively taking account of the overall purport of the record and examination, the real estate listed in paragraph (1) of the attached Table Nos. 1 and the real estate listed in paragraph (2) of the attached Table Nos. 2 of the same Table were used directly for the education of the kindergarten as the original site of the kindergarten, the original physician, and the real estate No. 246.4 square meters listed in paragraph (2) of the same Table, not for the kindergarten, but for the local floor of 246.4 square meters listed in paragraph (2) of the same Table.

Even in cases where land or building contributed or incorporated by an operator of a private school to use as a school site or teacher of a private school is located in the name of an individual on the register of a school manager, such land or building shall not be subject to compulsory execution pursuant to Article 28(2) of the Private School Act applied mutatis mutandis pursuant to Article 51 of the same Act and Article 12 of the Enforcement Decree of the same Act, and so long as it cannot be subject to compulsory execution, it shall not be subject to provisional seizure, which is a preservative measure to preserve the compulsory execution of the future. In addition, in the case of a private kindergarten, the term “property sold or unable to be offered as security as the property of the operator of a private school directly used for the school education” refers to the original land, teacher, or playground at the time of authorization for establishment of a kindergarten, which is actually used directly for the kindergarten education or after authorization for change of the head of the kindergarten (see, e.g., Supreme Court Order 201Ma107, Apr. 4, 2011).

Examining the facts in light of the above legal principles, the provisional attachment decision of this case on the real estate listed in paragraph (1) of the attached Table No. 1 and the real estate listed in paragraph (2) of the attached Table No. 2 shall be deemed null and void as a provisional attachment on the property prohibited from seizure under the Private School Act. Although it was not directly used for the education of the kindergarten at the time of the provisional attachment decision of this case, as long as the provisional attachment on part of one building is null and void and the provisional attachment on only part of the building is not allowed under the principle of the principle of the right to property, the provisional attachment decision of this case shall also be revoked unless there are other special circumstances.

B. Judgment on the creditor's assertion

1) The creditor asserts that a provisional attachment may be possible for part as an exception to the principle of the principle of the right of sunshine, since the part of the land of this case can be the object of the sectional ownership.

In a case where each part of the building has structural independence and independence in use, each part of the building can be considered as one building, and it can be considered as a sectioned building, barring special circumstances, it shall be determined by the owner's intent. Thus, in order to become a sectioned building, it shall be determined by the owner's intention, barring special circumstances. Thus, in order to become a sectioned building, the building must have independence in structure and use, namely, the expression of intent to be the object of sectional ownership. Thus, even if the owner extended the existing building, the sectional ownership is established as a matter of course only on the ground that the extension part has structural independence and independence in use, and the sectional ownership is established only when the owner has a sectional ownership (Supreme Court Decision 98Da35020 delivered on July 27, 199).

In light of the above legal principles, it is difficult to recognize the independence of use in light of the fact that the part of this case is divided into other parts of the building of this case and there is no independent passage from outside to allow access to the land of this case from outside as if it has the independence of one’s structure, and it is difficult to see that the independence of use in light of the fact that only the part of this case can be entered into the class and the toilet through the entrance of the first floor of this case through the stairs connected to the ground floor of this case. Furthermore, it is difficult to see that the debtor had expressed an intention to be presumed to be a sectional act, such as having registered the building of this case as a sectioned in the building ledger.

Therefore, since the part of the branch of this case cannot be seen as an object of sectional ownership, the obligee's assertion is without merit.

2) Meanwhile, the creditor asserts that the provisional attachment is a psychological pressure on the debtor even if compulsory execution is not carried out, and that the designation of the next kindergarten may be cancelled, so there is a need to preserve the provisional attachment.

The psychological pressure is legally meaningful under the premise of a legitimate provisional seizure, and there is no vindication as to the possibility of cancelling the designation of a kindergarten. Therefore, the obligee's assertion is without merit.

C. Determination of the debtor's assertion

Since the debtor is dissatisfied with the conditions of the security added to the revocation of provisional seizure, the court may provide adequate security when the provisional seizure is revoked, and the security offered for the revocation of provisional seizure is for the purpose of securing the damage to the creditor of provisional seizure due to the revocation of provisional seizure. Based on this point, the debtor's intent and ability to repay the provisional seizure of this case, and damages that the creditor may incur due to the revocation of provisional seizure of this case, the first instance court cannot be deemed to have imposed the provisional seizure of this case. Thus, the debtor's assertion is without merit.

4. Conclusion

Therefore, the decision of provisional seizure of this case should be revoked, and the security of 120,000,000 won shall be recognized as appropriate considering the damages of the creditors who suffer from the revocation of the decision of provisional seizure of this case, and the decision of the first instance is legitimate as the conclusion is consistent with this, so the appeal of the creditor and the debtor shall be dismissed as it is without merit. It is so decided

[Attachment]

Judges Min You-sook (Presiding Judge)