Advance measures
What are advance measures?
- When deemed specially necessary for the settlement of a case where a litigation of a family case exists, or a request for an adjudication or a conciliation, the family court, conciliation council, or judge in charge of conciliation may, either ex officio or upon request of a party, take the following measures against the other party or other interested persons, called advance measures (Article 62(1) of the Family Litigation Act):
1. A measure prohibiting the alteration of the current status or disposition of goods;
(Example) Measures on the share of the spouses’ support, aid, and living expenses, measures necessary for the modification of the property administrator, etc.
2. Measures for preserving property relevant to the case;
(Example) Measures prohibiting the disposition of property subject to division of property or property that would finance consolation money, etc.
3. Measures for the custody and fostering of related persons; and
(Example) Measures on child visitation and the payment of child support, etc.
4. Other measures found to be appropriate.
Application for advance measures
- Advance measures may be applied for at the court with jurisdiction over the case after bringing an action for divorce, requesting adjudication or conciliation (Article 62(1) of the Family Litigation Act).
Sanctions in the event of violation
- When the party concerned or interested person violates any advance measure without any just cause, a family court, conciliation council, or judge in charge of conciliation may impose an administrative fine not exceeding KRW 10 million either ex officio or upon request of the claimant (Article 67(1) of the Family Litigation Act).
Preservation measure: Provisional attachment and provisional measures
Types of preservation measures
- There are two types of preservation measures: provisional attachment and provisional measures. Unlike advance measures, preservation measures can be requested before bringing an action for divorce but require extra expenses because the request is made separately from litigation.
Provisional attachment
- What is provisional attachment?
· Provisional attachment means preventing a debtor (that is, a spouse) from disposing of property by attaching the debtor’s property to preserve the future execution of a monetary claim or claim convertible into money (Article 276(1) of the Civil Execution Act). Types of provisional attachment include ① provisional attachment of real estate such as building and land, ② provisional attachment of tangible movable property such as furniture and electronics, and ③ provisional attachment of claims such as lease security, deposit, and wages.
- Application for provisional attachment
· To apply for provisional attachment, apply for provisional attachment (application for the provisional attachment of real estate, tangible movable estate, or claim depending on the object of the provisional attachment) with explanatory materials to one of the following courts (Articles 278 and 279 of the Civil Execution Act):
1. The court with jurisdiction over the location of the object to be provisionally attached; or
2. The court with jurisdiction over the action on the merits (that is, the divorce litigation) should it be brought.
- Effect of the provisional attachment
· Once the execution of the provisional attachment is complete following the court’s provisional attachment decision, the debtor cannot make any disposition of the property. That is, the debtor cannot make dispositions including selling or donating the provisionally attached real estate, and even when the disposition is made, the validity of the transaction between the debtor and the third-party acquirer cannot be argued against the claimant (that is, the other spouse who has executed the provisional attachment).
※ Relevant judicial precedent
“If the title in the provisionally attached real estate is transferred to a third party after its provisional attachment, the disposition-prohibiting effect of the provisional attachment reaches the value of the provisionally attached object to the extent of the requested amount at the time of the provisional attachment decision, the effect of such disposition prohibition exists only between the provisional attachment claimant and the third-party acquirer and what is sold and acquired by the successful bidder in the auction procedure requested by the third-person acquirer’s claimant is the entirety of the provisionally attached object. However, the provisional attachment claimant exercises priority rights over the part of the sales proceeds reached by the disposition-prohibiting effect of the provisional attachment, which the claimants of the third-party acquirer must accept. Therefore, the provisional attachment claimant may receive a dividend on the sales proceeds of the provisionally attached object from the sales procedure to the extent of the amount requested at the time of the provisional attachment decision, while the third-party acquirer’s claimant may not receive a dividend on the amount of the sales proceeds over which the disposition-prohibiting effect of the provisional attachment has a reach.” (
Supreme Court Judgment 2006Da19986 announced on July 28, 2006)
- Revocation of provisional attachment
· If any of the following causes occurs, the debtor may apply for the revocation of the provisional attachment even after its authorization (Article 288(1) of the Civil Execution Act):
1. The cause of the provisional attachment is extinguished, or the circumstances have otherwise changed;
2. Security has been offered as set by the court; or
3. The action on the merits has not been brought for 3 years after the execution of the provisional seizure (in which event an interested person may also make the request).
Provisional measures
- What is a provisional measure?
· A provisional measure refers to ① prohibiting a change to the status quo of a specific contested object other than a monetary claim for preserving enforcement in the future, or ② provisionally determining a temporary status where there is a contested right between the parties, and where leaving the proceeding of the status quo as is until final judgment would result in manifest loss to the claimant or render the achievement of the claimant’s purpose infeasible (Article 300 of the Civil Execution Act). Although there are various objects and types of provisional measures, provisional measures forbidding disposition and those forbidding the transfer of possession are the leading types.
- Application for a provisional measure
· To apply for a provisional measure, apply for a provisional measure and explanatory materials to one of the following courts (Articles 279, 301, and 303 of the Civil Execution Act):
1. The court with jurisdiction over the location of the contested object; or
2. The court with jurisdiction over the action on the merits (that is, the divorce litigation) should it be brought.
- Effect of a provisional measure
· Once the execution of a provisional measure is complete based on a court’s provisional measure decision, the debtor may not make any changes to the status quo or temporary status of the specific contested object; that is, a specific contested object subject to a provisional measure forbidding disposition may not be disposed of, and even if it is, the validity of the transaction between the obligor and the third-party acquirer cannot be argued against the claimant.
※ Relevant judicial precedent
“If, after the registration of a provisional measure forbidding disposition on real estate, the provisional measure claimant prevails in the litigation on the merits and the judgment is final, the effect of the dispositive act infringing upon the provisional measure may be voided to the extent of the preserved right; whether the dispositive act infringes on the provisional measure is determined based on the relative sequence of the registration based on the dispositive act and the registration and the registration of the provisional measure.”(
Supreme Court Judgment 2000Da65802,65819 announced on February 28, 2003)
- Revocation of a provisional measure
· If any of the following causes occur, the obligor may apply for the revocation of the provisional measure even after its authorization (Articles 288(1) and 301 of the Civil Execution Act):
1. The cause of the provisional measure is extinguished, or the circumstances have otherwise changed;
2. Security has been offered as set by the court; or
3. The action on the merits has not been brought for 3 years after the execution of the provisional seizure (in which event an interested person may also make the request).
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Reference: Exercise of the Right to Revoke Fraudulent Acts for the Preservation of the Right to Division of Property
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※ What is the right to revoke fraudulent acts? → If one spouse has committed a fraudulent act, that is, a juridical act with a property right as its object, such as disposing of real estate, knowing it injures the other spouse’s claim for division of property, the other spouse may apply the provisions of the Civil Act on the claimant’s right of revocation mutatis mutandis to seek the revocation and restoration of the fraudulent act to the family court. This is called the right to revoke fraudulent acts (Articles 406(1) and 839-3(1) of the Civil Act). ※ Deadline to bring action for the revocation of fraudulent acts → An action for the revocation of fraudulent acts must be brought within 1 year of being aware of the cause of revocation and 5 years of the date the juridical act took place (Articles 406(2) and 839-3(2) of the Civil Act).
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