Provisional Attachment and Provisional Injunction

Provisional attachment is divided as follows according to the type of the target property.

1. Preparing the application

-Preparing the provisional attachment application and the statement
-Contents to include: the contents of the claimed credit, the purport of the application, the grounds for the application, etc.

2. Paying the application costs

-Stamp fee: affix a KRW 10,000 stamp to the application
-Prepayment of service fees

3. Providing security

-The court may issue an order to provide security in order to prevent harm to the debtor caused by the provisional attachment
-This may be replaced by submitting a guarantee insurance policy for the deposit

4. Execution of the provisional attachment and subsequent procedures

-Execution procedure
-Cancellation of execution
-Recovery of the deposited money

5. The debtor's right to respond: provisional attachment remedy procedures

-Objection: the debtor may file an objection to the provisional attachment decision.
-Application to cancel the provisional attachment:

Where the creditor does not file and prove a suit on the merits within a certain period
Where the grounds for the provisional attachment have ceased to exist or circumstances have changed
An application to cancel the provisional attachment itself upon the provision of security is possible

1. Provisional injunction concerning the subject matter in dispute

-A preservative measure to prevent a change in the current state of the relevant object or right where the claim is a right other than money
-Examples: a claim for transfer of ownership, a claim for delivery of real estate, a claim for delivery of the object of sale, etc.
-Practical term: provisional injunction concerning the disputed property

2. Provisional injunction to establish a provisional status

-A preservative measure to temporarily form a legal relationship where maintaining the current state between the parties until the suit on the merits is difficult or where damage is anticipated
-Examples: a provisional injunction prohibiting patent infringement, a provisional injunction suspending a director from duties, a provisional injunction for payment of medical expenses, etc.

▶Requirements for a provisional injunction application

The requirements for applying for a provisional injunction are as follows.

1. Existence of the right to be preserved

-A legal relationship must actually exist, and this includes not only contractual and proprietary rights but also intellectual property rights and rights under public law
-However, a monetary claim is in principle a target of provisional attachment, but recurring or periodic obligations (such as support payments or wages) may be a target of a provisional injunction

2. The need for preservation

-There must be a concern that the realization of the right will become impossible or very difficult
-Example: where real estate subject to a transfer of ownership is to be sold, where wages cannot be received depending on the legal relationship, etc.

▶Provisional injunction trial procedure

1. Receipt of the application and examination

-After receipt of the application, review of formal legality
-Operation of a written review or a hearing date

2. Order to provide security

-An order to provide security may be issued to prevent harm to the debtor
-Forms of security: cash, securities, a payment guarantee entrustment contract, etc.

3. The court's decision

-The court determines the content of the provisional injunction (prohibition, order, acting in the role, etc.) ex officio
-It may issue an order requiring the creditor to perform or refrain from a specific act

▶Execution and release of the provisional injunction

1. Execution

-The compulsory execution provisions of the Civil Execution Act apply mutatis mutandis
-The creditor must promptly carry out execution within 2 weeks after being served with the certified copy of the provisional injunction decision

2. Cancellation of execution

-The creditor may apply on their own to cancel the execution of the provisional injunction
-After the decision to cancel the security, the deposited money may be recovered

You should determine whether the right you intend to assert is a ‘monetary claim' or a ‘non-monetary claim'.

If it is a monetary claim, you should choose a provisional attachment; if it is a non-monetary claim, a provisional injunction.

You need to identify what property can actually be preserved.

Such property includes bank deposits, real estate, vehicles, wage claims, jeonse deposits, and shares.

This can be confirmed through documents such as a real estate registration certificate, a vehicle registration certificate, and wage claim information.

The application for a preservative measure must include the following items.

-The right to be preserved (the purport of the claim and the cause of the claim)
-Proof of the need for preservation
-The property subject to preservation and the specific method of execution
-The debtor's information and property information
-Attached materials (contracts, bankbook transaction records, text messages, property verification documents, etc.)

You submit the prepared application to the court having jurisdiction, and if there is a hearing procedure, you directly explain the need for preservation and your intention to provide security, among other matters.

If the court grants the application, you must file for execution immediately after receiving the security order.