[1] The nature of security as stipulated in Article 307 of the Civil Execution Act and the right to the above security of the creditor who won the provisional disposition in the lawsuit claiming damages caused by the revocation of provisional disposition

[2] In the case of a judicial security deposit, whether the court's order to provide security is necessary (affirmative)

[1] Articles 19(3) and 307 of the Civil Execution Act, Article 123 of the Civil Procedure Act / [2] Article 307 of the Civil Execution Act

[1] Supreme Court Decision 97Da58316 delivered on May 15, 1998 (Gong1998Sang, 1627)

[Plaintiff-Appellee]

Subu District Court Order 2009Ra312 dated February 17, 2010

The reappeal is dismissed.

The grounds of reappeal are examined.

1. Under Article 307 of the Civil Execution Act, it is deemed that continuing to maintain a provisional disposition is unreasonable in light of the fair concept, i.e., monetary compensation where the right to be compensated by the provisional disposition can achieve the objective of the relevant country, or where the provisional disposition obligor particularly suffers significant damages due to the execution of the provisional disposition, the provisional disposition obligor may not only execute the provisional disposition by having the provisional obligor provide the security, but also revoke the provisional disposition order itself so that the provisional disposition obligor may dispose of the object. Therefore, the security provided by the provisional disposition obligor is aimed at securing damages caused by the cancellation of the provisional disposition even though the provisional disposition obligee won the lawsuit on the merits, so the provisional disposition obligee may obtain preferential payment with the same right as the pledgee in accordance with Article 19(3) of the Civil Execution Act and Article 123 of the Civil Procedure Act (see Supreme Court Decision 9Da1685, May 15, 1998).

On the other hand, in the case of a judicial security deposit to secure the damages to be incurred to the other party due to the disposition of the court, such as procedural acts by the party, provisional seizure, provisional disposition, suspension, execution, or revocation of compulsory execution, since the obligation to provide security is specified by the judgment of the court ordering the provision of security, the deposit can be made only when there is an order to provide

2. A. The reasoning of the first instance decision as cited by the lower court and the record reveal the following facts.

① On June 2, 2001, regarding the instant real estate, the registration of the establishment of a neighboring mortgage, which became the debtor, Han-gu Co., Ltd., Han-gu Co., Ltd., and Han-gu Co., Ltd., Han-gu Co., Ltd., and the registration of the establishment of a neighboring mortgage, which became the creditor, the same company as the creditor, and the mortgagee, was completed on August 24, 2001, respectively. On April 19, 2005, the registration of the ownership transfer was completed in the name of the non-party, who is the subsequent purchaser, on the instant real estate, and on April 26, 2005, the registration of the establishment of a neighboring mortgage was revoked on April 26, 2005.

② On January 3, 2007, the Re-Appellant received a decision of provisional disposition on the prohibition of disposal against the claim for cancellation of ownership transfer registration due to the cancellation of fraudulent act on January 3, 2007 with respect to the instant real estate owned by the Non-Party, the non-party filed an objection against the provisional disposition on February 14, 2007 with the same court No. 2007Kadan894 on the said provisional disposition.

③ The Nonparty deposited KRW 131,593,356 on April 17, 2007, respectively, after stating the deposited person, the deposited person, the statute applicable to the deposit as the guarantee for the revocation of provisional disposition, and the fact of the cause of deposit, even though the Nonparty did not file an application for the revocation of provisional disposition due to the special circumstances under Article 307 of the Civil Execution Act, and the court did not issue an order to provide security.

④ In the case of the above provisional disposition, on April 25, 2007, the above court filed an application for the above provisional disposition in order to preserve the right to claim the cancellation of ownership transfer registration due to the cancellation of fraudulent act whose claim for the price of goods against the so-called company was preserved right, and the non-party, who is the subsequent purchaser, deposited the amount equivalent to the above goods price, decided to revoke the above provisional disposition on the ground that the above provisional disposition no longer needs to be preserved, and the above decision

⑤ From July 18, 2008, the Re-Appellant’s lawsuit seeking revocation of fraudulent act filed against the Han-gu Industrial Company and the Non-Party (the same court case No. 2007Gahap4219), the Re-Appellant’s judgment was rendered in favor of the Re-Appellant who revoked the fraudulent act and ordered compensation for value. The above judgment became final and conclusive around that time.

④ On April 22, 2009, the re-appellant filed a claim for the withdrawal of the deposit with the same court depository on the ground that the security right was exercised, along with the above favorable judgment. The above depository held that the court did not accept the claim for the withdrawal of deposit on the ground that the written judgment submitted by the re-appellant was not a favorable judgment on the damages incurred due to the provisional revocation of disposition.

B. In light of the above facts in light of the legal principles as seen earlier, the re-appellant is entitled to seek compensation for value arising from the cancellation of the establishment registration of a neighboring mortgage by means of fraudulent act after repayment, etc. before receiving the decision of prohibition of provisional disposition. Therefore, the judgment ordering compensation for value in a lawsuit seeking revocation of fraudulent act is not a favorable judgment of the provisional disposition obligee on the damages incurred by the provisional disposition obligee due to the provisional disposition, but it cannot be deemed a legitimate judicial security deposit pursuant to Article 307 of the Civil Execution Act, since the non-party's deposit of this case voluntarily made without the court's order of prohibition of provisional disposition cannot be seen as a legitimate judicial security deposit pursuant to Article

However, since the deposit of this case is invalid as a judicial bond, and the deposit of this case is made by mistake, the re-appellant can request the recovery of the deposit by obtaining the seizure and collection order, etc. as to the deposit collection claim of the depositor without the need to obtain the revocation of security.

Although the court below's explanation of its reasons is somewhat inappropriate, it is just to maintain the first instance court's decision which rejected the re-appellant's objection against the non-acceptance disposition of this case, and there is no violation of the Constitution, Act, order or rule that affected the judgment.

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)