[집행에 관한 이의] 확정[각공2004.2.10.(6),208]
Whether the additional registration of the provisional seizure against the registered lease claim concerning the registered lease is a legitimate registration (negative)
The right of lease is merely a claim that can be claimed by the lessee to allow the lessee to use or make profits from the leased object. Although the registration of the right of lease has been completed, the registration of the right of lease is merely a requirement that the lessee can oppose the third acquisitor, etc. of the leased object as the right of lease is a claim, and it is not a requirement for establishing the acquisition, alteration or requisite for setting up against the third acquisitor, etc., unlike the case of a mortgage or the right of lease. Therefore, even if the registration of the right of lease has been completed, the lessee may transfer the right of lease effectively according to the method of transfer of the nominative claim with the consent of the lessor. In addition, even if the provisional attachment, provisional injunction or provisional attachment registration of the right of lease is completed, the prohibition of disposal does not take effect unless the original copy of the decision of provisional attachment, provisional injunction or provisional attachment decision of the right of lease is delivered to the lessor who is the third debtor. Therefore, the registration of the right of lease does not have any meaning in terms of law for prohibiting or restricting the exercise of rights such as the transfer of the above right of lease.
Article 5 subparagraph 2 of the Registration of Real Estate Act, Article 156 of the Registration of Real Estate Act, Article 621 of the Civil Act
Korea Ginseng Corporation (Attorney Kim Jong-soo, Counsel for the defendant-appellant)
Daegu District Court Order 2003Ma2571 dated November 3, 2003
1. Revocation of a decision of the first instance;
2. The Daegu District Court (Seoul District Court 2003Kadan15696), among the execution procedures based on the decision of provisional seizure against the right of lease and the provisional seizure, shall revoke the registration of provisional seizure against the right of lease and the provisional seizure entered in the separate list, which was completed by the receipt No. 26277 of April 7, 2003, and shall entrust the registration of cancellation.
The same shall apply to the order.
1. Basic facts
The records of this case show the following facts.
A. On the ground that 133 persons, including the creditor and the Claimant 1,00 won from the appellant (the debtor, hereinafter referred to as 'appellant') have been paid by 160,640,50 won, non-party 1 filed an application for provisional attachment with this court as to the right of lease stated in the separate list of the appellant and the right to claim the return of lease deposit based thereon. On March 13, 2003, the court of first instance issued a provisional attachment order on the provisional attachment of the right of lease stated in the separate list of the appellant. The debtor may deposit 160,640,50 won, and request suspension of execution or revocation thereof."
B. On April 7, 2003, the court court court clerk and non-party 2 requested the registrar of this court to register the provisional seizure of the right of lease claims based on the decision of provisional seizure of this case. Accordingly, the provisional seizure of the right of lease claims entered in the separate list of the right of lease claims was completed (hereinafter referred to as the "registration of provisional seizure of this case").
2. The appellant's assertion and judgment thereon
A. The appellant asserts that the registration of provisional seizure in this case cannot be entered in the register on the premise of the fact of recognition under the preceding paragraph because the additional registration of the right of lease claim and provisional seizure claim concerning the right of lease falls under the case where the registration of the real estate under Article 55 subparagraph 2 of the Registration of Real Estate Act is not to be registered. Thus, the entrustment of the registration of provisional seizure in this case must be revoked as it goes against the provisions of Article 5 subparagraph 2 of the Registration of Real Estate Act, and the registration of provisional seizure in
B. Therefore, the right of lease is limited to the claim that the lessee can demand the lessor to use or make profits from the leased object, and even if the registration has been completed, the right of lease registration is merely limited to the requirements that the lessee can oppose the third acquisitor, etc. with the right of lease as the right of lease, and it does not constitute the requirements for establishing the acquisition, loss or change of the right of lease or the requirements for setting up against the lessee, unlike the case of mortgage or the right of lease on a deposit basis.
Therefore, even if a lease registration is completed with respect to the right of lease, the lessee may transfer the right of lease in accordance with the method of transferring the nominative claim with the consent of the lessor, and even if the provisional attachment, provisional injunction, or provisional attachment registration with respect to the right of lease has been completed with respect to the right of lease, the prohibition of disposal shall not become effective unless the original copy of the decision of provisional attachment, the original of the decision of provisional injunction or the original of the decision of provisional attachment with respect to the right
Therefore, the provisional seizure registration of this case on the right to lease stated in the attached list of the right to lease is a registration without any meaning in terms of legal effect because it does not meet the requirements for prohibiting or restricting the exercise of rights such as transfer of the above right to lease against the appellant. Therefore, the entrustment of the provisional seizure registration of this case is unlawful and revoked as it goes against the provisions of Article 5 subparagraph 2 of the Registration of Real Estate Act, and the provisional seizure registration of this case should also be revoked.
3. Conclusion
Thus, the decision of the first instance court is not justifiable because it is not proper to conclude the above conclusion, and it is so decided as per Disposition by cancelling the entrustment of the registration of provisional seizure of this case, and entrusting the cancellation registration.
Judges Lee Dong-hee (Presiding Judge) and Lee Dong-hee