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자유주제(自由主題) ; 민사보전처분에 있어서 해방공탁금에 관한 일고찰
Study on the a Security Deposit in Preservative Measure
최명수 ( Myung Soo Choi )
경성법학 vol. 22 iss. 1 137-152(16pages)
UCI I410-ECN-0102-2015-300-002093485

Securing deposition is temporary and provisional disposition ordered by court. after recognizing the existence of necessities of securty and the right to be secured by securing disposition with the right which is substantial right to be secured by insurance and evidence in order to secure the right of claimant in future before fixing the decision. There are provisional attachment which effected in monetary credit, provisional disposition which effected in non-monetary credit. provisional disposition deciding temporary position to protect imminent present danger, and specific securing disposition which is common securing disposition regulated by civil procedure law. In case of provisional attachment, secured right is obligatory claim which can be converted into money or monetary claim as proprietary claim. So positional right or claim which cannot be converted into money can not be secured by provisional attachment. And there is a decision of the lower court. which that it is null and void that they have registered the provisional attachment according to the provisional attachment not applying provisional attachment but applying provisional disposition directing to refrain from doing where the secured right was monetary claim. The necessity of securing the provisial is caused by that execution of a judgement would be impossible or would be considerably difficult without it due to disturbance of present state or maintenance of its value. In case of provisial disposition regarding subject matter, claim to deliver specific Matter, calim which has a purpose of feasance, non-feasance regarding specific matter. If it is claim regarding specific matter. it can be a subject-matter whether it is proprietary claim. or obligatory claim or a claim of domestic relational law. The necessity of securing provisional disposition regarding subject-matter can be recognized in case where execution of a claim would be impossible or would be considerably difficult without it due to the change of circumstances. In case of provisional disposition deciding temporary position. as its purpose is to protect present danger. it can not be secured right in a strict sense. And in secured right of non-litigation. there are negative theory insisting that there is no room for secured right before fixing ~he decision of Judgement because the right by non-litigation can be realized concretely by the judgement, and positive theory insisting that it can not be said only the right by the procedure of non-litigation do not have resonable right on the secured -right when we see the claim in the future has reasonable right of the secure right in securing disposition. even though the secured right has not realized concretely.

[자료제공 : 네이버학술정보]
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