[edit] Supreme Court Decision 2000Da11102 delivered on April 25, 2000 [Revocation of Provisional Seizure Order]

【Main Issues】

[1] Whether the interruption of prescription period by a provisional seizure continues while the preservation of execution of provisional seizure is effective (affirmative)

[2] Whether the interruption of prescription period by a provisional seizure discontinues when a favorable judgment on the merits of the claims to be preserved by the provisional seizure becomes final and conclusive (negative)

【Summary of Decision】

[1] Article 168 of the Civil Code provides the provisional seizure as a cause of interruption of prescription period because the creditor can be deemed to exercise its right through the provisional seizure. Since the provisional seizure obligee can be deemed to continue to exercise its right while the effect of the preservation of execution of provisional seizure continues to exist, the interruption of prescription by provisional seizure continues as long as the preservation of execution of provisional seizure is effective.

[2] Considering the provisions of Article 168 of the Civil Code which provide both the provisional seizure and the claim of payment by filing an action as separate causes of interruption of prescription period, the interruption of prescription by provisional seizure cannot be deemed to discontinue merely because a favorable judgment on the merits of the claims to be preserved by provisional seizure becomes final and conclusive.

【Reference Provisions】 [1] Item 2 of Article 168, Article 176 and Paragraph 1 of Article 178 of the Civil Code / [2] Item 2 of Article 168, Article 176 and Paragraph 1 of Article 178 of the Civil Code

Article 168 of the Civil Code (Causes Interrupting Prescription) Prescription shall be interrupted in any of the following cases:

1. <omitted>

2. seizure, provisional seizure or provisional disposition

3. <omitted>

Article 176 of the Civil Code (Seizure, Provisional Seizure, Provisional Disposition and Interruption of Prescription) A seizure, a provisional seizure, or a provisional disposition, if not effected against the person in whose favour prescription is running, shall not have the effect of interrupting prescription until such person has been notified thereof.

Article 178 of the Civil Code (Running of Prescription Period after Interruption) (1) In a case where a prescription is interrupted, the period of prescription passed until the interruption shall not be computed, and the prescription which was interrupted begins to run anew from the time when the cause of such interruption has ceased to exist.

(2) omitted.

【Applicant, Appellant】 Kwon Young-jo

【Respondent, Appellee】 Lee Byoung-nam in the capacity as the general successor of the deceased Ham Jin-gap

【Court of First Instance】 Seoul District Court Judgment 99Kadan 48611 delivered on July 23, 1999

【Court of Second Instance】 Seoul District Court Judgment 99Na58968 delivered on January 12, 2000

【Disposition】 The appeal shall be dismissed. All costs of appeal shall be assessed against the applicant-appellant.

【Reasoning】 The grounds for appeal are examined as follows.

Article 168 of the Civil Code provides the provisional seizure as a cause of interruption of prescription period because the creditor can be deemed to exercise its right through the provisional seizure. Since the provisional seizure obligee can be deemed to continue to exercise its right while the effect of the preservation of execution of provisional seizure continues to exist, the interruption of prescription by provisional seizure continues while the preservation of execution of provisional seizure is effective.

In addition, considering the provisions of Article 168 of the Civil Code which provides the provisional seizure and the demand by suit as separate causes of interruption of prescription period, the interruption of prescription by provisional seizure cannot be deemed to discontinue merely because a favorable judgment on the merits of the claims to be preserved by provisional seizure becomes final and conclusive.

In this case, pursuant to the facts duly confirmed by the court below, because the effect of the preservation of execution of provisional seizure regarding the real property at issue in this case currently continues, the prescription on the claims to be preserved by the provisional seizure shall be deemed to be interrupted and there exists no violation of law of misinterpreting the legal principle on the interruption of prescription by provisional seizure. Therefore, the ground for appeal shall not be justified.

Accordingly, the appeal shall be dismissed and all costs of appeal shall be assessed against the applicant-appellant. This decision is delivered with the assent of all Justices who reviewed the appeal.

Justices Suh Sung (Presiding Justice)

Chi Chang-kwon (Justice in charge)

Shin Seong-taek

Yoo Ji-dam

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