Article 2 of the Registration of Real Estate Act provides that the establishment, preservation, transfer, change, disposal or extinction of the ownership, superficies, easements, easements, lease on a deposit basis, mortgage and lease shall be limited by specifying the matters to be registered. Therefore, matters not falling under this provision shall be interpreted as being impossible to register unless there is any legal basis.

In addition, it is clear that provisional registration in order to preserve the right to claim transfer of ownership is registered pursuant to Article 3 of the same Act, and therefore, it is clear that provisional disposition prohibiting the disposition by the holder of a right on the provisional registration falls under the restriction on the disposition as referred to in Article 2 above, there is no room to suspect that it is registered.

However, there is a dual theory as to whether provisional disposition based on the provisional registration is allowed, but even if such provisional disposition is allowed, it depends on whether it can be registered or not.

According to the order of the provisional disposition decision of Seoul Civil District Court 77Ka15263, which was a problem in this case, the respondent (the re-appellant) ordered that the real estate shall not exercise, transfer or take any other measure on the provisional registration for the purpose of preserving the right to claim the transfer of ownership according to the purchase and sale contract of October 20, 1975, under which the respondent received mobilization on October 27, 26182, for the purpose of preserving the right to claim the transfer of ownership according to the provisional registration, and that the transfer or other disposition of the main body of this case shall be prohibited from taking the provisional registration right itself, and it is obvious that the registration is the matter to be registered, but it is not clear that the purpose of this registration is to prohibit the exercise of the right under the provisional registration, which is the former part of this case, as at the time of the original judgment, if it is the purport of prohibiting this registration as at the time of the provisional registration, it is not a restriction on disposition. This is because the provisional registration is the acquisition of the right secured by the provisional registration (an increase or a decrease of the right).

In addition, according to Article 719 (3) of the Civil Procedure Act, when a provisional disposition prohibits a transfer or mortgage of real estate due to a provisional disposition, the prohibition shall be entered in the register by applying mutatis mutandis the provisions of Article 710 of the same Act. However, considering that it is clear that the prohibition of this registration does not correspond to this, such provisional disposition shall not be deemed to be a matter to be registered, and even if it is based on a request from a party or a request made by a court or any other public office, it shall be dismissed (see Article 55 (2) of the Registration of Real Estate Act), and even if it is received and entered in the register that is not registered, the contents of such provisional disposition shall not be effective.

Despite this, the order of the court below, based on the premise that the part of the order of the Seoul Civil District Court Order 77Ka15263, which was issued by the application of the other party, is interpreted as a provisional disposition against provisional registration based on the order part of the Seoul Civil District Court Order 77Ka15263, and that the provisional disposition against provisional registration is valid (it does not mean that the provisional disposition against the part prohibiting transfer of rights or all other disposal acts in the provisional registration shall not be valid) under the premise that the provisional disposition against the provisional registration is valid, since the provisional registration after the provisional disposition is registered, the principal registration based on the provisional registration is relatively ineffective against the provisional disposition against the provisional disposition owner, and then the registration officer completed the provisional registration based on the above provisional registration, which was entered after the provisional registration that cannot be asserted against the above provisional registration, and issued an order to restore it. However, since the provisional disposition against the provisional registration upon provisional registration as seen above, if it is not a matter to be registered upon provisional registration, it cannot be viewed that the provisional registration against the above provisional registration is unlawful.

Even if the provisional disposition prohibiting the principal registration based on the provisional registration is valid, and it is assumed that the provisional registration authority (re-appellant) which is the respondent of the provisional disposition has the effect of the provisional disposition, it is not related to the ex officio cancellation of the registered public official.

Therefore, the judgment of the court below is erroneous in the misapprehension of the legal principles as to the matters to be registered or provisional registration. Therefore, the judgment of the court below cannot be reversed on the ground that the argument is justified.

Therefore, it is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Tae-won (Presiding Justice)