A. The obligee’s liability for preservative measures against the lawsuit on the merits is finalized

(b) Whether there is a proximate causal relation between the payment of penalty and the execution of provisional disposition in a case where the seller pays the penalty to the buyer for a breach of contract only by the fact that the registration of prohibition of disposal of the subject matter has

A. Although preservative measures such as provisional attachment and provisional disposition are executed by the court's decision, whether there exists a substantive claim or not shall be entrusted to the lawsuit on the merits and shall be liable to the creditor by the vindication. Thus, if the execution creditor after such execution has become final and conclusive as a loss in the lawsuit on the merits, it shall be presumed that the execution creditor was intentional or negligent, unless there is any special proof as to the damage suffered by the debtor due to the execution of the preservative measure, and therefore, he shall be liable to compensate for the damage caused by such

B. It is not impossible to register the transfer of ownership of an apartment that is the object of sale on the ground that the provisional disposition is executed by the creditor. However, if the creditor has won the lawsuit on the merits and the registration of the transfer of ownership has been made to the creditor, the buyer may lose ownership, but it can be resolved by the warranty liability, etc. Accordingly, the buyer may refuse the performance of the obligation to pay according to the good faith principle, etc., and therefore, the buyer cannot rescind the above sales contract merely because the execution of the provisional disposition is in progress. Thus, even if the seller paid the double amount of the down payment received by the seller to the buyer, it cannot be deemed as a breach of the obligation under the sales contract, and it cannot be deemed as a payment under the good faith principle, even if it is paid to the buyer, it cannot be deemed as a payment under the obligation under the sales contract, and therefore there

A. Article 750 of the Civil Act; Articles 696 and 714 of the Civil Procedure Act; Article 763 of the Civil Act (Article 393)

A. Supreme Court Decision 79Da2138, 2139 delivered on February 26, 1980 (Gong1980, 12655) 80Da300 delivered on February 8, 1983 (Gong1983, 481) 92Da8453 delivered on September 25, 1992 (Gong1992, 2990) B. Supreme Court Decision 72Da867 delivered on July 25, 1972 (Gong20 ② citizen158) 92Da28518 delivered on December 222, 1992 (Gong193Ha, 561)

Deficial Housing Corporation

Defendant

Suwon District Court Decision 93Na2930 delivered on December 17, 1993

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

We examine the grounds of appeal.

1. Summary of the reasoning of the judgment below

(2) The court below ruled that the above provisional disposition 10, 1986. 8. 1, 2, 2, 3, 196. 8, 2, 9, 9, 197, 197, 199. 9, 2, 2, 199, 9, 199, 199, 199, 2, 199, 100, 199, 2, 1999, 199, 2, 90, 199, 199, 2, 90, 199, 199, 100, 90, 190, 190, 190, 190, 190, 190, 190, 190, 190, 190, 190, 199, 200, 198, 200

2. Judgment on the grounds of appeal

A. On the first ground for appeal

Although preservative measures such as provisional seizure or provisional disposition are executed by the court's trial, whether there exists a substantive claim or not shall be entrusted to the principal lawsuit and shall be borne by the creditor. Thus, if the execution creditor has lost in the principal lawsuit after the execution thereof, it shall be presumed that the execution creditor was intentional or negligent, unless there is any special proof as to the damage incurred by the debtor due to the execution of the preservative measure, and therefore, it shall be liable to compensate for the damage caused by such unfair execution (see, e.g., Supreme Court Decision 92Da8453, Sept. 25, 1992). In addition, considering the records, it is reasonable to recognize that the court below recognized that the defendant executed the provisional disposition even though he did not have the right to preserve the object at the time of the application for provisional disposition, it is reasonable to recognize that the defendant had been aware that there was no such right, and therefore, the defendant has the duty to compensate for the damage suffered by the plaintiff

However, with respect to the scope of compensation for damages, the above provisional disposition registration was completed on May 27, 1989 and the sales contract between the plaintiff and the non-party 2 was concluded on June 6 of the same year thereafter, so it can be seen that the plaintiff and the non-party 2 entered into the above sales contract with the knowledge that the execution of the above provisional disposition was made, and there is no provision related to the provisional disposition in the contents of the above sales contract. It is not impossible to register the transfer of ownership in the above sales contract on the ground that the plaintiff's provisional disposition was made against the non-party 2. However, if the defendant won the lawsuit on the merits and the transfer of ownership is made to the defendant, the non-party 2 may lose ownership, but it can be resolved by the warranty liability, and therefore, the non-party 2 can not be viewed as having violated the above provisional disposition, and even if the plaintiff did not have any obligation to pay the above sales contract, it can not be viewed as having been paid with a reasonable causal relation between the plaintiff and the non-party 2.

Nevertheless, the court below's order of compensation to the defendant, unlike the above opinion, cannot be deemed to have committed an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles as to the scope of liability for damages of the provisional disposition authority and the proximate causal relation, and there is a ground to charge this error.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)