Provisional seizure is divided according to the type of property subject to execution.
What is most used is
provisional attachment on immovables
provisional attachment against claim/credit/passbook
In order to apply for provisional seizure, the contents of the claim, purpose of application, reason for application, etc. are commonly required.
A small provisional seizure application form and provisional seizure statement must be attached and submitted.
The reasons for the application for provisional seizure must include the status of the parties, the right to be preserved, the need for preservation, provision of collateral, etc.
When the court accepts an application for provisional seizure, it always issues an order to provide collateral.
This is to cover the debtor's losses, but the creditor cannot receive the money.
You may wonder why collateral is provided for the debtor when applying for provisional seizure.
The provisional seizure procedure is conducted based on only the applicant's (creditor's) application documents, so the debtor does not have the opportunity to state his or her opinion to the court.
Let's consider a case where a provisional seizure decision was made based on the creditor's application, but the creditor later loses the lawsuit on the merits.
Even though it is a debt that does not exist from the debtor's point of view, it is due to a unilateral claim by the creditor.
An unfair situation has arisen in which one is restricted from disposing of, using, or profiting from one's property rights.
Therefore, it requires the creditor to provide collateral to cover any possible losses to the debtor.
The creditor's provision of collateral pursuant to the collateral provision order is possible by subscribing to deposit guarantee insurance or depositing cash.
Below, excluding the common parts, we will look into the matters separately requested in each provisional seizure.
1. Provisional attachment on immovables
If there is real estate among the debtor's assets, provisional seizure of the real estate will be carried out first, even if there are other assets such as bonds or tangible movables. This is because real estate is considered to have fewer restrictions on ownership because it is more difficult to cash out than deposit claims or tangible movables.
If a bond or tangible property is provisionally seized even though there is real estate, why is the real estate not provisionally seized in the provisional seizure statement?
You must state whether provisional seizure is being made on a bond or tangible property. Since the debtor's real estate to be provisionally seized must
The register of the real estate to be provisionally seized must also be submitted. Real estate is subject to provisional seizure with priority over other assets of the debtor.
If there are already many liens on the property, its actual property value may be low.
However, even in cases where there are many mortgages, the actual debt amount may be less than the maximum amount shown in the register.
This does not mean that there is no benefit to provisional seizure. Typically, in the case of provisional seizure of real estate, an order to provide collateral is issued in an amount in the range of 1/10 of the amount of the bond to be provisionally seized.
2. Provisional attachment against claim/credit/passbook
If the debtor's property is in the form of a claim, for example, a deposit claim to a bank, a deposit return claim, a construction payment claim,
a goods payment claim, etc.
If the debtor has a bond with a third party (third party debtor), the bond can be provisionally seized.
Provisional seizure of claims takes effect when the decision on provisional seizure is delivered to the third-party debtor. In order to provisionally seize a deposit claim against a bank, You must know the debtor's name and resident registration number, and you can seize provisionally by specifying the account number or by determining the order of all accounts at the bank.
When a bond is provisionally seized, it has the effect of ordering the 3rd party debtor to remain silent and not pay money to the debtor.
The creditor does not have the right to receive money from the third party debtor. Therefore, in the case of provisional seizure of bonds
The remaining procedure is to file a separate lawsuit on the merits, receive a ruling, and obtain a collection order or full order.
In the case of provisional seizure of a bond, an amount equivalent to 2/5 of the claimed amount must be provided as collateral.
3. Corporeal/tangible movables(ticket)
This involves the seizure of tangible property owned by the debtor, such as objects such as offices and factories operated by the debtor, and fixtures of the house where the debtor resides.
The biggest advantage of provisional seizure of tangible property is that it can exert psychological pressure.
However, the disadvantage is that tangible movables often do not have significant property value, so there is little meaning in securing actual claims, and the amount of collateral provided is as much as 4/5 of the claim amount.
In litigation, intermediate stages such as court trials are important, but provisional seizure requires careful attention to the initial preparation process and including everything.
This is a procedure in accordance with Korean law.For foreigners, detailed procedures may vary.
Please chat or email for specific details.