[가처분이의][미간행]
Whether the applicant for provisional disposition maintains the benefit of the application for provisional disposition in case where the ownership transfer registration has been made in the third party with respect to the real estate after the provisional disposition was cancelled by the execution of the decision on revocation of provisional disposition (negative)
Articles 300(1), 305, and 307 of the Civil Execution Act
Supreme Court Decision 96Da42307 Decided October 13, 1998 (Gong1998Ha, 2650) Supreme Court Order 2008Ma401 Decided May 7, 2008
Creditors
The debtor
Seoul High Court Order 2009Ra297 dated September 22, 2009
The order of the court below shall be reversed and the decision of the first instance shall be revoked. The application for provisional disposition of this case shall be dismissed. All costs of litigation shall be borne by each
We examine ex officio.
If a provisional disposition is cancelled by the execution of a decision to revoke a provisional disposition, the effect of the provisional disposition becomes conclusive. Accordingly, since a person who has completed the registration of ownership transfer for the real estate concerned may oppose the applicant for the provisional disposition with the effect of acquiring the ownership without any restriction on the real estate, and as such, if the ownership transfer registration has already been made in the third party with respect to the real estate in dispute, the applicant for the provisional disposition shall no longer have the benefit to apply for the provisional disposition (see Supreme Court Order 2008Ma401, May 7, 2008, etc.).
In regard to the instant case, upon the creditor’s application for the prohibition of the provisional disposition on real estate in this case, the provisional disposition was issued on the instant real estate in the name of the debtor, and the provisional disposition was completed upon its execution. The first instance court filed an objection by the debtor, which decided to authorize the provisional disposition in this case, but the court below changed the first instance court’s decision and revoked the provisional disposition order in this case and dismissed the application for provisional disposition in this case. While the creditor re-appealed against this decision, it can be known that the provisional disposition registration on the instant real estate was revoked due to the execution of the order of the court below, and thereafter the ownership transfer registration on the instant real estate was made in the name of the debtor.
Therefore, the order of the court below that judged the propriety of the motion cannot be maintained in this respect, inasmuch as the motion for provisional disposition in this case was lost the benefit of the motion while the reappeal was pending, and thus, the benefit of the motion was improper. Therefore, the order of the court below that judged the validity of the motion shall not be maintained. Therefore, the order of the court below shall be reversed, but this case is deemed sufficient to directly judge the motion for provisional disposition in this case. As seen earlier, the decision of the court of first instance that judged the validity of the motion for provisional disposition in
Justices Cha Han-sung (Presiding Justice)