Effect of provisional disposition prohibiting disposition

In a case where Gap filed a provisional disposition registration of prohibition of disposal by subrogation of Byung who is the creditor of Eul on the land owned by Eul, even if in the decision of provisional disposition, the third party is prohibited from disposing of Eul on the land owned by Eul, Byung is not included in Byung, and the right to be preserved in the above provisional disposition is merely preserving Byung's right to claim the transfer registration of ownership against Byung, and it does not include Gap's right to claim the transfer registration of ownership against Byung.

Article 714 of the Civil Procedure Act

Plaintiff 1 and two others (Attorney Lee Jae-sik, Counsel for the plaintiff-appellant)

Defendant 1 and five others (Attorney Park Byung-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 72Na1039, 72Na1040 Decided September 8, 1972

All appeals by the Defendants shall be dismissed.

The costs of appeal shall be assessed against the defendants.

The Defendants’ agent’s grounds of appeal are health.

As determined by the court below, if Defendant 1 registered the provisional disposition of prohibition on disposal on behalf of Nonparty 2, who is the creditor of Nonparty 1, on the site of this case owned by Nonparty 1, on behalf of Nonparty 1, the creditor of the above provisional disposition, Defendant 1 has its purpose to prevent the above non-party 1 from performing the act of disposal such as transfer of ownership in order to preserve his right to claim the registration of transfer against the above non-party 2. Thus, even if the decision of prohibition on disposal prohibits the above non-party 1 from taking measures against the third party, the above non-party 1 does not include the non-party 2, who is the right holder of the provisional disposition, as long as the non-party 2 received the registration of transfer of ownership from the non-party 1 after the above provisional disposition registration, the purpose of such provisional disposition is to be achieved, and therefore, the right to preserve the above provisional disposition cannot be seen as null and void since it was merely a preservation of the right to claim the ownership transfer registration against the non-party 2 before the above provisional disposition registration of this case becomes final and conclusive.

Therefore, this appeal is without merit, and it is so decided as per Disposition by all participating Justices on the bench by applying Articles 400 and 89 of the Civil Procedure Act.

Supreme Court Judges Kim Young-chul (Presiding Judge) (Presiding Justice) Mag-gim Kim, Kim Jong-dae and Yang-Namng