Where an obligor dies between the application for provisional disposition and the decision of provisional disposition, the effect of the provisional disposition

The provisional disposition of prohibition of disposition, which is rendered upon the request of only one of the creditors without undergoing an examination procedure or a pleading procedure, shall not be deemed null and void in a case where the debtor was living, even if the debtor was rendered a judgment by designating the deceased person as the debtor on the ground that the debtor died immediately before the decision was made, unless the debtor was alive at the time of the request.

Article 714 of the Civil Procedure Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Attorney Lee Jae-sik et al.

Respondent

Gwangju District Court Decision 92Na3621 delivered on October 1, 1992

The appeal is dismissed.

The costs of appeal shall be assessed against the respondent.

We examine the grounds of appeal.

On the first ground for appeal

The reason why Nonparty Korea Land Development Corporation filed a lawsuit as to the instant land by exercising the right of repurchase does not immediately lose the Plaintiff’s right of ownership. Thus, the lower court is justifiable in rejecting the respondent’s defense that the applicant lost his legal status to seek the revocation of the instant provisional disposition by exercising the right of repurchase of the said Korea Land Development Corporation, and there is no error of misapprehending the legal principles on the mistake of facts or the validity of the right of repurchase, or on the revocation of provisional disposition due to changes in circumstances, such as the theory of the lower judgment.

On the second ground for appeal

The judgment of the court below to the same purport is just, and the decision of provisional disposition on the prohibition of provisional disposition rendered at the request of only one of the parties to summon both parties or without going through the oral proceedings, even if the debtor was alive at the time of the application, and the debtor was rendered a judgment on the provisional disposition on the grounds that the deceased person was the debtor before the decision was made, such decision cannot be deemed null and void as a matter of course (see, e.g., Supreme Court Decision 75Da1240, Feb. 24, 1976). There are no errors in the misapprehension of legal principles as to the validity of provisional disposition against the deceased person like the theory of lawsuit.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the respondent. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)