[부동산가처분이의][공1982.5.15.(680),432]
In the procedure of objection against provisional disposition, whether the right to be preserved in the reason for the application for provisional disposition can be changed (affirmative)
In the procedure of a provisional disposition, unless there is a change in the basis of the claim, the right to be preserved in the reason of the application can be changed. Accordingly, the right to claim the cancellation of ownership transfer registration as the preserved right and the right to claim the ownership transfer registration due to the prescriptive acquisition can be added to the ground of the provisional disposition application in the procedure of the provisional disposition to the extent that the provisional disposition is not changed after the claim for
Articles 714(1), 703, 704, 715, and 235(1) of the Civil Procedure Act
Supreme Court Decision 81Da1223, 81Meu991 Decided March 9, 1982
Attorney Lee In-bok et al., Counsel for defendant
[Defendant-Appellant] Defendant 1
Busan District Court Decision 81Na291,292 delivered on October 16, 1981
The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.
1. First, we examine the grounds of appeal as to the case of appeal by the petitioner’s attorney at the Supreme Court Decision 81Da1221,122.
The gist of the grounds of appeal is as follows: (a) there is an error of law by misunderstanding the Act on the Guardianship, and (b) there is an error of law by misunderstanding the legal principles as to the scope of the right to be preserved for provisional disposition, but this is not a legitimate ground of appeal since it does not fall under any of the subparagraphs of Article 11(1) of the Act on Special Cases Concerning
2. The following grounds of appeal are examined as follows: (a) the Plaintiff’s agent’s ground of appeal based on the permitted dismissal under the 81∑989,990.
(1) Ground of appeal No. 1
In light of the records, the court below is justified in finding that the allocation agreement of this case, which was in March 28, 1950, was made by the applicant as the guardian of the respondent, and according to the provisions of Articles 901 through 904 of the former Civil Code, which was in force at the time of the above distribution agreement, the mother of the minor was not the legal guardian, and therefore there is no argument that the appointment of the applicant's guardian is null and void on the premise that the mother is the legal guardian.
(2) Ground of appeal No. 2
The court below held that in this case, the right to claim the transfer of ownership cannot be the preserved right if it considers the right to claim the cancellation of the registration on the ground of invalidity of the cause of the provisional disposition as the preserved right, and that the right to claim the transfer of ownership cannot be the preserved right.
However, in light of the circumstances where the application for preservation order is in accordance with urgent necessity and the legal composition of the preserved right and evidence relations are sufficiently examined and confirmed at the time of the application, unless there is any change in the basis of the claim, the procedure of the provisional disposition can also be seen as changing the preserved right in the procedure of the application. According to the records, the applicant has the respondent's right to claim for the cancellation registration of ownership transfer registration against the respondent as preserved right and additionally filed a claim for ownership transfer registration due to the acquisition by prescription in the procedure of the application for the provisional disposition after receiving the decision of the provisional disposition, and the claim for ownership transfer registration due to the acquisition by prescription was added to the ground of the provisional disposition in the procedure of the application for the provisional disposition. Since the preservation of the provisional disposition in this case cannot be deemed to have changed to the ground of the claim before and after the above change
Ultimately, the court below's decision that the above transfer registration right is not the preserved right of the provisional disposition of this case is erroneous in the misunderstanding of legal principles as to the scope of the preserved right, and it is reasonable to discuss that it constitutes a serious violation of law that can reverse the judgment below.
3. Therefore, the judgment of the court below is reversed, and the case is remanded to the Busan District Court Panel Division for a new trial. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Lee Sung-soo (Presiding Justice)