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Provisional Attachment in General: From Application to Setting Aside and Deposits to Obtain Release

Based on 87 consultation cases · Updated · Translated from the Korean original.

Provisional attachment is a procedure that temporarily freezes a debtor’s assets to preserve enforcement of monetary claims and similar claims. The consequences of setting aside the attachment or enforcing it vary depending on circumstances such as payment of the claim, whether proceedings on the merits have been pursued, and whether a deposit to obtain release has been made. The requirements of each mechanism should therefore be distinguished.

At a glance

Parties → Creditor → Debtor → Court → A creditor seeks to freeze assets to preserve a money claim → Is there a claim to preserve and a need for preservation? → No → Yes — Civil Execution Act Article 276 → Has the preserved claim been paid in full? → Yes — Civil Execution Act Article 288 → Was a merits action withdrawn, dismissed, or deemed withdrawn, or was none filed for three years? → Yes → A setting-aside application may be available → Attachment is not automatically set aside → Check payment proof; a paid claim cannot be reused to preserve another claim → Check withdrawal reasons and later conduct; three years without suit may not suffice if recovery intent is clear → Check any release deposit: no payment priority; attachment reaches the debtor claim to recover it, not the deposited funds

Key points

  • Provisional attachment is an interim measure to preserve enforcement of a monetary claim or a claim that can be converted into money. There must be a claim to be preserved and a need for preservation (Civil Execution Act, Article 276 (민사집행법 제276조); Cases 8 and 17).
  • A provisional attachment creditor does not automatically have a priority right to payment from the property subject to attachment or from funds deposited to obtain release. When such a deposit is made, the provisional attachment takes effect against the debtor’s claim to recover the deposit, not against the deposited funds themselves (Cases 9 and 14).
  • If the claim to be preserved has been extinguished by payment, an application may be made to set aside the provisional attachment because of a change in circumstances, and the attachment cannot be repurposed to preserve another claim (Civil Execution Act, Article 288 (민사집행법 제288조); Cases 18 and 21).
  • Even if no action on the merits is filed for three years after enforcement of the provisional attachment, the failure to file may not be grounds for setting it aside where the creditor’s intent to realize or recover the claim is clear from an enforceable instrument or similar document (Civil Execution Act, Article 288(1)(3) (민사집행법 제288조 제1항 제3호); Case 15).
  • If an action on the merits filed in response to an order to file an action is withdrawn, dismissed, or deemed withdrawn, this may be treated as a failure to submit the required documents and may provide grounds to apply to have the provisional attachment set aside (Civil Execution Act, Article 287(4) (민사집행법 제287조 제4항); Case 5).
  • The fact that an action on the merits has been deemed withdrawn does not always constitute grounds to set aside a provisional attachment because of a change in circumstances. Whether the creditor abandoned the intention to preserve the claim is determined by examining the reason for the withdrawal and subsequent circumstances (Civil Execution Act, Article 288 (민사집행법 제288조); Case 6).
  • As a rule, a general monetary creditor of a trustor cannot enforce against trust property. Exceptions may apply to rights that arose against the trust property itself before the trust was created (Trust Act, Article 21 (신탁법 제21조); Case 2).
  • For the amount claimed in a provisional attachment, instead of stating interest or default damages as an unspecified condition, specify a definite sum calculated for the amount accrued by the application date or through a specified period (Case 25).

Frequently asked questions

Q. When can I apply for provisional attachment?

Provisional attachment is a procedure for preserving in advance the enforcement of a monetary claim or a claim that can be converted into money. There must be a claim to be preserved, and the need for preservation must be recognized—for example, because enforcement may later be impossible or difficult.

Case 8, Case 17

Q. What should I do if I have paid off the debt in full but the provisional attachment remains in place?

If the claim to be preserved has been extinguished by payment, you may apply to have the provisional attachment set aside on the ground of a change in circumstances. You can prove to the court that ordered the provisional attachment that the debt has been paid in full and, after obtaining an order setting it aside, proceed to cancel the provisional attachment registration on that basis.

Case 18

Q. Can I continue to use a provisional attachment that has been paid off to preserve another claim?

As a rule, you cannot. If the claim to be preserved by the provisional attachment has been extinguished by payment, that attachment cannot be repurposed to preserve a separate claim.

Case 18, Case 21

Q. Will a provisional attachment automatically be set aside if no action on the merits is filed for three years?

That circumstance may provide grounds to apply to have the provisional attachment set aside, but it will not always be set aside. If the creditor’s intention to recover the claim by obtaining an enforceable title outside a lawsuit—for example, an enforceable deed—is clear, the failure to file a separate action on the merits within three years may not be grounds for setting the attachment aside.

Case 15

Q. Will the provisional attachment be set aside immediately if the action on the merits is deemed withdrawn?

A deemed withdrawal does not, by itself, automatically set aside the provisional attachment. However, if an action on the merits filed after an order to file an action is deemed withdrawn, it may be treated as a failure to submit the documents required by that order, and may therefore provide grounds to apply to have the provisional attachment set aside. If you seek to have it set aside because of a change in circumstances, the reason for the withdrawal and subsequent circumstances must also be considered.

Case 5, Case 6

Q. Can a general creditor of the trustor provisionally attach the debtor’s trust property?

As a rule, a general monetary claim against a trustor alone does not allow a creditor to provisionally attach trust property. Exceptions may apply, however, to rights that arose against the trust property itself before the trust was created. If the trust was created to prejudice creditors, a separate claim to set it aside and restore the property may be at issue.

Case 2

Q. If a deposit is made to obtain release from provisional attachment, can the attachment creditor receive payment ahead of other creditors?

Even if enforcement of a provisional attachment is set aside after a deposit to obtain release, the provisional attachment creditor does not thereby acquire a priority right to payment from the deposited funds. The provisional attachment takes effect against the debtor’s claim to recover the deposit, so other creditors’ attachments may also target that claim.

Case 14

Q. If several assets are subject to provisional attachment, can one deposit to obtain release clear them all?

A provisional attachment in another case is not set aside merely because a deposit to obtain release was made in one case. If you wish to have several provisional attachments set aside, you may identify the attachments you want set aside when applying to provide appropriate security.

Case 24

Q. Can I include future interest in the amount claimed for provisional attachment?

Rather than including interest or default damages as an unspecified condition in the claimed amount, you should calculate the amount already accrued or the amount through a specified future period and state it as a definite sum. The claimed amount affects, among other things, the limit of the provisional attachment and the calculation of the release amount.

Case 25

Relevant laws

  • Civil Execution Act, Article 19(3) (민사집행법 제19조 제3항)
  • Civil Execution Act, Article 276 (민사집행법 제276조)
  • Civil Execution Act, Article 278 (민사집행법 제278조)
  • Civil Execution Act, Article 280 (민사집행법 제280조)
  • Civil Execution Act, Article 282 (민사집행법 제282조)
  • Civil Execution Act, Article 283 (민사집행법 제283조)
  • Civil Execution Act, Article 287 (민사집행법 제287조)
  • Civil Execution Act, Article 288 (민사집행법 제288조)
  • Civil Execution Act, Article 291 (민사집행법 제291조)
  • Civil Execution Act, Article 299 (민사집행법 제299조)
  • Civil Procedure Act, Article 125 (민사소송법 제125조)
  • Civil Procedure Act, Article 126 (민사소송법 제126조)
  • Civil Act, Article 406 (민법 제406조)
  • Civil Act, Article 449 (민법 제449조)
  • Civil Act, Article 482 (민법 제482조)

Watch out for

  • The requirements for setting aside an attachment because of failure to comply with an order to file an action differ from those for setting it aside because of a change in circumstances. It is important to distinguish how a deemed withdrawal of an action on the merits is treated under each procedure.
  • A deposit to obtain release replaces the property subject to provisional attachment; it does not give the attachment creditor a priority right to payment.
  • To include interest or default damages in the claimed amount, calculate the amount specifically and state it as a definite sum.

Related articles

Source cases

This guide was compiled by AI from the following Korea Legal Aid Corporation consultation cases (in Korean).

  1. 가압류이의소송절차에서 피보전권리를 변경할 수 있는지
  2. 위탁자의 채권자가 신탁재산에 가압류를 할 수 있는지
  3. 채권가압류경정결정이 확정된 경우 그 경정결정의 효력발생 시기
  4. 가압류취소소송의 변론종결 전 본안소송 제기 시 가압류취소 되는지
  5. 제소명령에 의한 본안소송이 취하간주된 때 소제기의 효력
  6. 보전명령에 대한 본안소송의 취하간주가 보전명령 취소사유인지
  7. 자기의 부담부분을 넘은 변제를 한 보증인이 다른 보증인에 대하여 구상권을 행사하는 경우 그 보증인이 채권자가 한 가압류의 효력...
  8. 가압류와 가처분의 요건
  9. 가압류해방공탁금 회수청구권을 압류한 공탁금 대여자의 대항력
  10. 신청 당시 이미 사망한 자를 상대로 한 보전처분의 효력 및 이의신청이 허용되는지
  11. 담보취소결정 확정 전 담보권리자 권리행사 증명 시 담보취소결정의 효력
  12. 무담보가압류신청에 대하여 담보제공명령 시 그에 대한 불복방법
  13. 본안이 상고심 계속 중인 경우 보전소송의 관할
  14. 가압류 해방공탁금에 대하여 가압류채권자에게 우선권이 있는지
  15. 가압류 취소 사유인 ‘3년간 본안의 소를 제기하지 아니한 때’의 판단
  16. 가압류·가처분 시 제공한 보증공탁금의 회수방법
  17. 가압류(假押留)의 개념
  18. 부동산가압류 채무자의 변제를 이유로 한 가압류취소방법
  19. 담보로 공탁된 현금을 담보제공자 발행의 당좌수표로 변환이 허용되는지
  20. 보전처분과 내용이 서로 저촉되는 제2의 보전처분을 받음으로써 사실상 선행 보전처분을 폐지, 변경하거나 그 집행을 배제하는 목적...
  21. 소멸한 위자료채권에 기한 가압류를 재산분할청구채권으로 유용 가능한지
  22. 판결 확정 전에도 가집행정지를 위한 공탁금을 회수할 수 있는지
  23. 가압류에서 본압류로의 이전 및 추심절차
  24. 동일 채권으로 여러 부동산에 대한 각 별건의 가압류를 했을 때 채무자가 그 집행을 취소하는 방법
  25. 청구금액을 기재할 때 지연이자도 표시할 수 있는지

This guide is general legal information about Korean law, not legal advice for your situation. For a specific case, consult a lawyer or the Korea Legal Aid Corporation (call 132 in Korea).