[가처분취소청구사건][하집1992(2),400]
Whether a third party purchaser can reverse the above judgment in the appellate court where the registration of provisional disposition is cancelled by the judgment of revocation of provisional disposition by the provisional execution declaration book after the provisional disposition is registered (negative)
Even though a person who has acquired the real estate after a provisional disposition prohibition has been made to preserve the right to claim ownership transfer registration of the real estate, if the provisional disposition registration is cancelled, it is the owner who is not restricted from the provisional disposition from that time, even if it is by the decision of revocation of provisional disposition with a declaration of provisional execution, and the real estate owned by a third party is registered for cancellation of provisional disposition, and therefore it cannot be the object of provisional disposition to preserve the compulsory execution by the creditor of provisional disposition, and the judgment of the court below ordering
Articles 716 and 720 of the Civil Procedure Act
Ministry of Labor
Maximum compacts
Mountainous District Court Decision 91Hu7322 delivered on October 22, 1991
1.The appeal by the respondent is dismissed.
2.The costs of appeal shall be borne by the respondent.
Subject to deposit of gold 8,949,447 won by the applicant, the provisional injunction against disposal of real estate against the 91k6112 of the party members between the above parties against the provisional injunction against disposal of real estate shall be revoked on August 3, 1991 against the 605 square meters (limited to the land of this case) prior to 202 square meters prior to the 205 square meters of the 196.112 Sinnam-si, Jin-si, Seoul (hereinafter referred to as the "provisional injunction").
The costs of lawsuit shall be borne by the respondent and a declaration of provisional execution.
The judgment of the court below shall be revoked.
The petitioner's application is dismissed.
Litigation costs shall be borne by the applicant at all of the first and second instances.
The respondent's right to claim the transfer registration of ownership due to the completion of acquisition by prescription on the part at 56 square meters in the place of the ship connecting each point of 1,2,3,14,15,16, and 1 of the land in this case with the respondent's order among the land in this case as the preserved right against the applicant, and the prohibition of disposal of the land in this case is applied for as a party member 91k612, and it is accepted by the party member, and the decision of provisional disposition in this case was made on August 3, 191
The Claimant asserts that there is a special circumstance in which the right to be preserved of the instant provisional disposition can achieve the purpose of the Rose of Sharon by monetary compensation, and sought its revocation, and the Respondent claimed its revocation.
In full view of the purport of pleading in the statement of evidence No. 6, the court below's decision on the land of this case was made under the name of the applicant on October 25, 191, and the registration of cancellation of provisional disposition was made on August 6, 1998, and the registration of cancellation of provisional disposition was made on November 5 of the same year. The registration of cancellation of provisional disposition was made under the judgment of this case with a declaration of provisional execution to cancel the provisional disposition order of this case, and there is no counter-proof. Thus, even if the above provisional disposition registration was cancelled after the provisional disposition registration of this case was made, it cannot be accepted as the owner of this case who is not restricted from provisional disposition from the time of the decision of cancellation of provisional execution (see Supreme Court Decisions 72Da246, Apr. 25, 1972; 72Da2466, Aug. 16, 1968).
Judges Kim Jong-woo (Presiding Judge)