[사정변경에의한가처분취소][공1974.5.1.(487),7792]
Whether the filing of a lawsuit for review after the decision on the merits which denied the right to be preserved has an effect on the cause of change of circumstances.
As long as the right to claim cancellation of ownership transfer registration is denied by final and conclusive judgment, the reason to continue the provisional disposition order to preserve the right to claim cancellation registration ceases to exist, the filing of a lawsuit for retrial alone cannot affect the change in circumstances already occurred
Article 706 of the Civil Procedure Act
Attorney Yang Sung-sik, Counsel for the applicant
Respondent (Attorney Noh Byung-jin, Counsel for defendant-appellant)
Seoul High Court Decision 73Na898 delivered on September 26, 1973
The appeal is dismissed.
The costs of appeal shall be assessed against the respondent.
Judgment on the Respondent's Grounds of Appeal
The provisional disposition decision of this case is issued to preserve the respondent's right to claim cancellation registration of the land ownership registration of this case which the applicant acquired, so long as this claim is denied in the final judgment of this case and the judgment becomes final and conclusive, the reason to continue this decision has ceased to exist at the same time with the final and conclusive judgment of this case, even though a lawsuit was filed against the final and conclusive judgment of this case, if there are grounds such as cancellation of the final and conclusive judgment of this case by the lawsuit for retrial and return to the state of maintaining the provisional disposition, it does not affect the cause of change in the situation that has already occurred. Thus, the judgment of the court below in this opinion is just (refer to Supreme Court Decision 69Da1796 delivered on December 9, 196), and it is obvious that the lawsuit for retrial is pending in the court of first instance and there is no cancellation of the final and conclusive judgment of this case, and it cannot be said that there is no justifiable ground for misunderstanding of legal principles as to changes in circumstances since the court below did not have any special reason as alleged above.
Therefore, the appeal is dismissed as without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Il-young (Presiding Justice)