The method by which a provisional disposition creditor who claims that the application for cancellation of provisional disposition was prepared or forged without the authorization of the creditor, seeks the cancellation and recovery of the provisional disposition cancellation registration cancelled at the request of the court (=Objection to Execution)

Articles 16, 293, 301 of the Civil Execution Act, Articles 27 and 75 of the Registration of Real Estate Act

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

Special Appellants

Seoul Central District Court Order 2009Kaga8419 dated October 30, 2009

The special appeal is dismissed.

We examine the special grounds for appeal.

The application for the cancellation of provisional disposition by the creditor of provisional disposition is an application for the withdrawal of the application for provisional disposition or the cancellation of its execution. This application is an act constituting the execution procedure of provisional disposition, and whether the application is based on the intention of the creditor of provisional disposition. Therefore, the ground that the application was completed or forged without the delegation of the creditor is an execution act based on the application, i.e., the execution of the entrustment of cancellation of the registration of provisional disposition. Therefore, the creditor of provisional disposition who claims that the application for cancellation of provisional disposition was completed or forged without the delegation of the creditor can file a claim for cancellation against the execution court through the execution. If a third party has interests in the registration in the restoration of the cancelled provisional disposition, his consent or a certified copy of the judgment against it shall be submitted to the execution court (see Supreme Court Decision 9Da27149 delivered on March 24, 200).

According to the records, the entry of provisional disposition was completed on December 21, 200 with respect to each of the lands of this case under the name of the special appellant as of December 21, 200. The provisional disposition registration was completed on May 17, 2003 in the name of the non-applicant 1, 2003, and the provisional disposition registration was cancelled on January 14, 2004 for reasons of provisional disposition cancellation. The provisional disposition registration for non-applicant 1, 2 shares of each of the above lands was cancelled on February 21, 2004. The provisional disposition registration for non-applicant 3 shares of non-applicant 1, and non-applicant 4 shares of each of the above lands was made on September 11, 200, the provisional disposition registration for non-applicant 2,007 was made on June 19, 2008, and the provisional disposition registration for non-applicant 200 shares of each of the above lands can be seen as being cancelled without the aforementioned legal principles.

Therefore, the lower court’s dismissal of the instant application is justifiable, and it did not err by misapprehending the legal doctrine as alleged by the special appellant, or by violating the Constitution or the law that affected the judgment.

Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)