Case Type: Provisional Attachment on Real Estate (Preservative Measure) 

Outcome: Granted a provisional attachment order allowing the entire court deposit to be substituted with a security bond instead of a cash deposit. 

Case Details: 

Recently, there has been a sharp increase in the number of buyers considering the cancellation or termination of pre-sale contracts due to false or exaggerated advertising and lack of transparency in project progression. Just as important as winning the lawsuit itself is taking "preservative measures (provisional attachment)" to freeze the counterparty's assets, ensuring the actual recovery of funds post-judgment. Generally, when applying for provisional attachment on real estate, the court issues a deposit order requiring the applicant to deposit a certain amount of money to secure potential damages to the debtor. In recent practices, courts tend to require all or a significant portion (usually 10% or more) of the deposit to be paid in cash to prevent the abuse of provisional attachments, which imposes a substantial financial burden on contract buyers initiating litigation. Our counsel logically demonstrated the urgency of the matter and the clear existence of the claims to be secured. As a result, we successfully obtained a decision to substitute the entire deposit amount with a security bond pursuant to a security provider order, entirely eliminating the need for a cash deposit. The client successfully placed a provisional attachment on a large-scale trust property without any cash outflow, establishing a solid foundation for recovering the funds upon winning the main lawsuit. 

Key Considerations for Provisional Attachment on Trust Properties

In pre-sale business structures involving a trust company, determining "what" to attach is the ultimate key to success. One must not indiscriminately apply for a real estate attachment simply because the property is visible. First, it is crucial to analyze the business structure to identify the specific nature of the trust agreement—whether it is a security trust, management trust, disposal trust, or pre-sale management trust. Second, the trust agreement must be thoroughly reviewed to examine the details of the "trust beneficiary rights" held by the developer (trustor) against the trust company, including the identification of priority beneficiaries and the methods of asset disposal. Based on this, the target of attachment must be precisely defined: a "provisional attachment on the trust property itself" if direct claims can be exercised against the trust company, or a "provisional attachment on the trust beneficiary rights" if the attachment must target the proceeds to be settled by the developer in the future. Attaching a target that does not align with the business structure can lead to a fatal consequence where enforcement becomes impossible (enforcement failure) even after obtaining a favorable final judgment. Therefore, the claims and pleadings must be meticulously designed by accurately analyzing the legal status and role of the trust company. Lawsuits for the return of pre-sale deposits require rigorous preliminary preparation that secures the practical possibility of fund recovery.

Case Inquiry: Attorney Yu-mi Yang