Changwon District Court Tongwon Branch 2008Gahap128 ( October 30, 2008)

If the court receives an application for cancellation of the provisional disposition, the method of appeal by the party

If the court makes a decision revoking the provisional disposition, the party dissatisfied with the decision may file an immediate appeal against it, and it is not possible to assert the invalidity of the decision revoking the provisional disposition without going through such procedures.

The contents of the decision shall be the same as attached.

1. The plaintiffs' appeals against the defendants are all dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the court of first instance shall be revoked. The Defendants expressed their intention of acceptance on the registration of the provisional disposition entry registration with respect to the portion of ownership 3305.78/5341 on January 10, 2002, which was revoked on March 20, 2007 with respect to the real estate stated in the separate sheet to the Plaintiff ○○○○ Construction Co., Ltd., the said registry office of the Changwon District Court, the registration office of 12355 on March 22, 2007, and on the registration of the restoration of the provisional disposition entry registration with respect to the portion of ownership 33046.78/5341 on January 10, 202, and on the registration of the provisional disposition entry registration with respect to the real estate listed in the separate sheet to the Plaintiff ○○○○ Construction Co., Ltd., Ltd., the said registry office will accept the registration of the restoration of the provisional disposition entry registration with respect to the portion of ownership 4628.

1. Quotation of judgment of the first instance;

The reasoning of this case is that the part of the judgment of the court of first instance, "2. argument and judgment", is identical to that of the judgment of the court of first instance, except for the following cases, and therefore, they are cited in accordance with Article 420 of the Civil Procedure Act.

2. The part of "2. The argument and judgment"

A. The plaintiffs' assertion

1) In each principal lawsuit (request for the registration of ownership transfer) against Defendant Kim Jong-jin, the Plaintiff ○○ case received a favorable judgment or a ruling of recommending reconciliation as to the portion of the land before the instant partition, which was the 2644.63/5341 shares among the land before the instant partition, and the Plaintiff ○○ Metal received a favorable judgment or a ruling of recommending reconciliation as to the portion of the land before the instant partition.

2) The Plaintiffs completed each registration of ownership transfer in the names of the Plaintiffs according to the final judgment in favor of the Plaintiffs and the decision to recommend reconciliation, but the provisional registration of the right to partial transfer of ownership in the name of Defendant Park Jong-chul, which was completed after the registration of the provisional disposition in this case, and the registration of seizure in the name of the Defendant Republic of Korea, was not cancelled since the Plaintiffs did not separately file an application for cancellation. Therefore, the above provisional disposition of prohibition of disposal continued to have a need to keep the order of priority

3) Nevertheless, the branch court of Changwon District Court accepted the application for cancellation of the provisional disposition decision by defendant Kim J-jin (the ground for application: the plaintiff obtained the provisional disposition decision and completed the registration of ownership transfer after completing the provisional disposition, so the provisional disposition decision should be revoked due to changes in circumstances) and rendered a decision revoking the provisional disposition decision of this case (the provisional disposition decision of this case dated February 14, 2007 2007Kahap30 dated February 15, 2007).

4) Therefore, the decision of revocation of the provisional disposition of this case is made without any ground, and the registration of cancellation of the provisional disposition of this case, which was made according to the decision of revocation of invalid provisional disposition, shall also be deemed null and void.

5) Therefore, the entry registration of this case shall be restored, and the defendants, the right holder of this case, who is a registered right holder, who is likely to suffer damages if the entry registration of this case is restored, have a duty to accept the procedure for recovery of entry registration of provisional disposition against the plaintiffs.

B. Determination

1) Where the obligor seeks the revocation of the provisional disposition decision on the ground of change in circumstances, the court shall deliberate on the change in circumstances pursuant to Articles 301, 288, and 286 of the Civil Execution Act and make a decision to revoke the provisional disposition decision or to dismiss the application therefor.

2) In a case where the court made a decision to revoke the provisional disposition order, the party dissatisfied with it can file an immediate appeal (Article 286(7) of the Civil Execution Act), and if the decision becomes final and conclusive due to the absence of a party’s appeal, etc., a retrial may be filed only when there exists any ground for retrial (Article 23 of the Civil Execution Act and Article 461 of the Civil Procedure Act), and in principle, a decision to revoke the provisional disposition order or the registration to revoke the provisional disposition entry registration of this case shall not be deemed null and void as a preliminary question in the lawsuit of this case without

3) Ultimately, the plaintiffs' assertion based on the premise that the decision of provisional disposition in this case and the registration of cancellation of provisional disposition registration are null and void is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiffs' appeal is dismissed in its entirety as it is so decided as per Disposition.