Effect of withdrawal of application for provisional disposition

On the other hand, the provisional disposition shall be withdrawn by the intention of the applicant for provisional disposition, and if it is received by the court, the effect of the provisional disposition is denied on the ground of a violation of the agreement outside the lawsuit between the parties to such provisional disposition shall not be permitted for the clarification and stability of the action in the application lawsuit. In addition, even though the execution agency should cancel the provisional disposition in accordance with the above provisional disposition order, if the provisional disposition is withdrawn, the provisional disposition order based on it shall be null and void. Therefore, the provisional disposition order based on it shall not be deemed null and void, and it shall not be re- executed without the execution agency's authorization order again because the execution agency becomes null and void.

Articles 504, 510, and 511 of the Civil Procedure Act

Applicant

Respondent Corporation

Busan District Court (72Ka1409)

The appeal is dismissed.

Expenses for appeal shall be borne by the respondent.

Subject to the condition that the applicant deposits 300,000 won as a guarantee, the respondent shall have the applicant use and operate the ship listed in the attached Table.

Expenses for application shall be borne by the respondent.

The original judgment shall be revoked.

The petitioner's request for provisional disposition of this case is dismissed.

The ratio of application shall be borne by the applicant in all the second instance.

On October 16, 1970, the Respondent filed a dispute over the above Respondent's provisional disposition and the Respondent's 3rd vessel's Respondent's 10th vessel's 1st vessel's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's 500th vessel's Respondent's Respondent's Respondent's Respondent's 1000.

Therefore, possessory right to the ship in question has been restored to the applicant due to the cancellation of the execution of the provisional disposition above, and the right to operate the ship has also been recognized by the agreement between the applicant and the respondent. However, the respondent's prior provisional disposition withdrawal is invalid because the applicant unilaterally sold the ship to the applicant's place of payment to the respondent, and even if it is not so, the cancellation of the provisional disposition execution by the execution agency is null and void. Thus, the respondent's rejection of the provisional disposition's effect can not be allowed for clarification and stability of the application and procedural acts, and if it is received by the court, it cannot be viewed as invalid because the execution agency has already cancelled the provisional disposition's cancellation without the expiration of the provisional disposition's cancellation order, since it is invalid for the enforcement agency to cancel the provisional disposition's cancellation.

(However, the procedure of cancellation of the above execution does not require a separate execution court's revocation order, and it is reasonable to revoke the execution disposition only when the execution agency submitted it to the execution agency after filing an objection against the so-called execution method on the ground of the withdrawal of the provisional disposition and the debtor submitted it to the execution agency after receiving the cancellation order on the provisional disposition from the execution agency.

Then, although the respondent's application for permission for vessel operation is an order or decision issued at the time of the disposition of seizure and custody of the vessel in accordance with the provisions of compulsory execution, the respondent's assertion that the court below seems to have cited the provisional disposition of this case, but there are special provisions that can order the guard or the preservation and operation of the vessel in the procedure of compulsory execution, and therefore it is impossible to make the general provisional disposition due to the right to be preserved. Thus, the respondent's assertion on this point is groundless.

In this regard, it has already been recognized that the applicant has the right to possess the vessel in question, and according to the facts received by the members prior to this point and each vindication, the respondent is interfering with the above applicant's right and exercise. Therefore, the applicant's application for provisional disposition in this case cannot be accepted under the condition that 300,000 won should be offered as security.

As above, the original judgment is reasonable, and the respondent's appeal against it is without merit, it is dismissed in accordance with Article 384 of the Civil Procedure Act, and the bearing of the costs of appeal is decided in accordance with Articles 89 and 95 of the same Act.

[Attachment List omitted]

Judges Seo-sok (Presiding Judge) Hun-Gaon Park Jae-joon