Whether revocation of the decision of provisional seizure becomes a ground for demurrer against the creditor of provisional seizure in a lawsuit of demurrer against distribution (affirmative), and in a case where the decision of provisional seizure was revoked during the lawsuit of demurrer against distribution after the date of distribution, whether it may be alleged as a ground for objection (affirmative)

If a provisional seizure order issued by a creditor has been revoked, the creditor loses the status of receiving dividends as a creditor of provisional seizure. Therefore, revocation of the provisional seizure decision may constitute grounds for objection against the creditor of provisional seizure in a lawsuit of demurrer against distribution. Furthermore, in a lawsuit of demurrer against distribution, the plaintiff may assert the grounds arising after the date of distribution and until the date of closing argument in fact-finding proceedings as well as the grounds for objection. Thus, even in cases where the provisional seizure order was revoked during the lawsuit of demurrer

Articles 151(3) and 154(1) of the Civil Execution Act

[Plaintiff-Appellant] Plaintiff 2007Da27427 decided Aug. 23, 2007 (Gong2007Ha, 1460)

Plaintiff (Law Firm Ha, Attorneys Gangwon-gu et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Park Jong-soo et al., Counsel for the defendant-appellant)

Gwangju High Court ( Jeonju) Decision 2014Na1985 decided January 8, 2015

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

The grounds of appeal are examined.

1. If a provisional attachment order issued by a creditor has been revoked, the creditor shall lose the status of receiving a distribution as a creditor of provisional attachment. Therefore, revocation of the provisional attachment order may constitute a ground for objection against the creditor of provisional attachment in a lawsuit of demurrer against distribution. Furthermore, in a lawsuit of demurrer against distribution, the plaintiff may assert as a ground for objection the grounds for objection that occurred after the date of distribution and until the closing of argument in the fact-finding court is closed (Supreme Court Decision 2007Da27427 Decided August 23, 2007, etc.), and even in cases where the provisional attachment order was revoked during the lawsuit of demurrer against distribution after the date

2. According to the reasoning of the lower judgment, the lower court: (a) on August 13, 201, 201, the date of distribution of the real estate auction case of the Jeonju District Court Decision 201Ma7029, the Plaintiff, a mortgagee of the right to collateral security, filed an objection to the total amount of dividends against the Defendant, who was the right to collateral security on August 13, 2013; and (b) on August 19, 2013, the Plaintiff filed a lawsuit of demurrer to the distribution of the instant case; (c) on the ground that the Defendant’s provisional attachment decision of this case (former District Court Decision 94Kadan4092, the first Nonparty succeeded to the provisional attachment order of this case) was not filed a lawsuit within 10 years after the provisional attachment was executed; and (d) recognized that the revocation of provisional attachment was finalized on November 6, 2013; and (e) determined that the revocation of the provisional attachment order of this case became final and conclusive, the lower court did not err by misapprehending the legal doctrine as above.

3. 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 Kim Shin (Presiding Justice)