Provisional Attachment(“가압류(Ga-ap-ryu)”) is a system that temporarily deprives a debtor of his/her right to dispose a property even before judgment is made, in order to enforce a monetary claim of a creditor.
In principle, a creditor needs an enforcement title such as a judgment to enforce the debtor’s property, but it is necessary to freeze the property in advance to prepare for the risk that the debtor may dispose of the property during the lawsuit.
Provisional Attachment is distinguished from Provisional Disposition(“가처분(Ga-chu-Bun)”) in that it is a means of preserving a “monetary” claim, and it is distinguished from the creditor’s Right of Revocation, which is the right to recover the debtor’s property that has already been deviated, in that it is intended to maintain the “status quo” of the debtor’s property.
Below, we will explain the specific requirements for seizure: ① Preservation of a monetary claim, and ② Necessity of Preservation.
1. Preservation of a monetary claim
The right to be preserved by provisional attachment must be a monetary claim. Therefore, provisional attachment to preserve claims under family law or claims that cannot be converted into money is unpermitted(Article 276, Civil Execution Act).
On the other hand, provisional attachment to preserve claims that can be converted into money is permitted. For instance, provisional attachment to preserve a claim for registration of transfer of ownership is permitted, because the claim may be converted into claim for damages (money claims) in case of non-performance of transfer.
In addition, the right to be preserved by attachment does not have to be definite at the time of attachment application. If the basis for its creation exists, conditional claims or claims that will arise in the future can also be the right for provisional attachment(Supreme Court Decision 92다2891).
However, since provisional attachment is a system to preserve compulsory execution, attachment for right that cannot be enforced through civil execution procedure is not permitted. For example, provisional attachment for tax claims is not permitted, because tax claims are enforced through procedures under the National Tax Collection Act, not under the Civil Execution Act.
2. Necessity of Preservation
Provisional attachment may be effected where an execution of the judgment is impossible, or there exists a concern about the considerable difficulty in executing the judgment(Article 277, Civil Execution Act).
In other words, there must be a specific reason that makes it difficult to enforce the judgment even if the creditor acquires the judgment afterward(such as damage, concealment, or sale of the debtor’s property). This specific reason must lie with the debtor himself(not with the debtor’s guarantor or joint debtor), but the debtor’s intention or negligence is not necessarily required.
Necessity of preservation is determined by considering various factors, such as the debtor’s status, occupation, and financial status. If sufficient material collateral has been established for the creditor’s monetary claim, or if the creditor already has a final judgment and can immediately execute the judgment, the necessity of preservation is denied (Supreme Court Decision 2005다7672).
On the other hand, if a creditor has already received a provisional attachment but neglects to proceed with the main execution for a long time even after acquiring a judgment, the need for preservation may be deemed to have disappeared and the provisional attachment may be cancelled (Supreme Court Decision 90다카25246).
3. Relation with the main lawsuit
The right to be preserved by provisional attachment and the right that is the subject of the main lawsuit do not need to be strictly identical, and if the general basis of the claim is similar, the effect of the provisional attachment extends to the right of the main lawsuit.
If a debtor pays the debt after receiving provisional attachment, this becomes a reason for cancellation of the attachment due to “change of circumstances”(Article 288, Civil Execution Act). And the existing provisional attachment cannot be re-used to preserve other rights.
Provisional Attachment can be a convenient and prompt method to preserve a monetary claim. So if the debtor’s financial situation is unstable, provisional attachment before main lawsuit is strongly required.
Yeoam Law Firm is a Korean law firm established by lawyers who have gained litigation experience at Kim & Chang, which is the top-ranked lawfirm in Korea, and at Prosecutor’s Office of Seoul.
For inquiries, please contact at jhlee@yeoamlaw.com
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