[1] In a case where a creditor of provisional attachment has executed a compulsory execution by designating the debtor of provisional attachment as the execution debtor after the ownership of the real estate has been transferred to a third party under the execution of provisional attachment on the real estate, whether the creditor of the third party as to the third party may participate in the distribution as to the remainder other than the extent that the prohibition of disposal of provisional attachment has an effect

[2] The case holding that where a creditor Gap and Eul were distributed to a third party in the compulsory execution procedure conducted by the provisional seizure creditor after the ownership of the real estate has been transferred to a third party while the provisional seizure on the real estate had been executed, the provisional seizure creditor Gap and Eul were entitled to bring a lawsuit of demurrer against distribution against Eul, in case where the third party purchaser Gap and Eul received a distribution

[1] Where the ownership of the object of provisional seizure has been transferred to a third party after the execution of provisional seizure on the real estate, the creditor of the provisional seizure may execute the compulsory execution by obtaining an executive title and designating the debtor of the provisional seizure who is not the third party as the debtor of the provisional seizure and transferring it to the provisional seizure. In this case, such compulsory execution is a compulsory execution procedure against the debtor of the provisional seizure, who is the execution debtor, only within the limit of the claim amount at the time of the decision of provisional seizure which is the objective scope of the prohibition of disposal of the provisional seizure, which is the objective scope of the prohibition of disposal of the provisional seizure, and the remainder is the sale procedure against the third party'

[2] The case holding that where a creditor Gap and Eul were distributed to a third party in the compulsory execution procedure conducted by the provisional seizure creditor after the ownership of the real estate has been transferred to a third party while the provisional seizure on the real estate had been executed, the provisional seizure creditor Gap and Eul were entitled to bring a lawsuit of demurrer against distribution against Eul with respect to the remaining proceeds of sale by the third party acquisitor Gap and Eul

[1] Article 564 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 231 of the Civil Execution Act) Article 659 of the former Civil Procedure Act (see current Article 151 of the Civil Execution Act) / [2] Article 564 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 231 of the Civil Execution Act) Article 659 of the former Civil Procedure Act (see current Article 151 of the Civil Execution Act)

[1] Supreme Court Decision 98Da43441 delivered on November 10, 1998 (Gong1998Ha, 2853)

Plaintiff 1 and one other (Attorney Dong Dong-sung, Counsel for the plaintiff-appellant)

Defendant 1 and 14 others

Seoul High Court Decision 2002Na44719 delivered on July 8, 2003

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

1. The court below held that since the creditors of the Central Distribution Co., Ltd. (hereinafter referred to as the "former Owners") transferred the ownership of the real estate in this case to the vegetable World Co., Ltd. (hereinafter referred to as the "third acquisitor"), after executing provisional seizure on the real estate in this case, the plaintiffs and the defendants registered provisional seizure as creditors of the third acquisitors after the execution of the provisional seizure in the compulsory execution procedure commenced after transfer of the above provisional seizure to the above provisional seizure, and that the execution court paid dividends to the creditors of the previous owners within the extent of the amount preserved as provisional seizure from the sale price of the real estate in this case on the date of distribution to the creditors of the provisional seizure, the remaining sales price after distributing dividends to the creditors of the previous owners should be distributed to the third acquisitors, not immediately be distributed to the third acquisitors, and since the plaintiffs received the above provisional seizure order in preference to the defendants, the remaining sales price in this case shall not be deemed to have been paid in preference to the above third acquisitors, and thus, the plaintiffs' remaining sales price in this case shall not be deemed to have been paid dividends to the third acquisitors dividends.

2. Where ownership of the object of provisional seizure has been transferred to a third party after the execution of provisional seizure, the creditor of provisional seizure may enforce the compulsory execution by obtaining title and designating the debtor of provisional seizure who is not the third party as the debtor of provisional seizure and transferring it to the provisional seizure. In this case, such compulsory execution is a compulsory execution procedure against the debtor of provisional seizure, who is the debtor of provisional seizure, only within the limit of the claim amount at the time of the decision of provisional seizure which is the objective extent that the prohibition of disposal of provisional seizure is effective (see Supreme Court Decision 98Da4341 delivered on November 10, 1998). Since the remaining parts are the sale procedure against the third party's property, the creditor of the third party may receive dividends from the proceeds of sale of the third party's property in the sale procedure, on the other hand, if the amount of dividends against the defendants who received dividends in the real estate execution procedure has been reduced, the reduced amount will be paid to the third party purchaser the remaining claims to the third party, and whether the amount of the plaintiff's objection to the distribution becomes final in the distribution procedure.

3. Examining the records on the premise of the above legal principles, the court below erred in the misapprehension of legal principles as to the eligibility of a third-party purchaser to a distribution under Article 659 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) that deemed that the third-party purchaser’s claim for the remaining proceeds of sale is not eligible to a third-party purchaser’s objection to the distribution. However, the judgment of the court below which held that the plaintiffs cannot be deemed to have a preferential right to the remaining proceeds of sale except for the amount distributed to the execution creditor in the execution procedure in this case between the Defendants, is acceptable, and there is no error in the misapprehension of legal principles as to

Therefore, although the court below should have dismissed the claim of this case, there was an error of rejection of the lawsuit of this case, but only the plaintiffs' appeal cannot change the judgment below against the plaintiffs in this case. However, all of the plaintiffs' appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon-won (Presiding Justice)