Whether the effect of the disposition on default can be denied if the attachment registration by the disposition on default is made after the registration of the provisional disposition on default, and the provisional disposition authority becomes final and conclusive upon winning the lawsuit on the merits (affirmative, and the priority of provisional disposition)

Article 35 of the National Tax Collection Act provides that "the disposition for arrears shall not affect the execution thereof due to the provisional attachment or provisional disposition in court." However, even if there exists such provisional attachment or provisional disposition, it is only a provision on procedural progress that does not affect the progress of the disposition for arrears, and the effect of the disposition for arrears does not take precedence over the validity of the provisional attachment or provisional disposition. Therefore, when the provisional disposition is confirmed after the provisional disposition for arrears was registered and the provisional disposition for arrears became final and conclusive after the right holder won the lawsuit on the merits, the effect of the disposition for arrears may be denied within the scope of the preserved right, and such priority effect of the provisional disposition shall not change

Article 714 of the Civil Procedure Act, Article 35 of the National Tax Collection Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 1974,7705, Jan. 15, 1974) (Law No. 832, Aug. 23, 1983; Law No. 1436, Jun. 23, 1987; Law No. 867, Jun. 23, 1987; Law No. 1987, Dec. 21, 192)

[Judgment of the court below]

Seoul Central District Court Order 92Ra630 Dated September 22, 1992

The order of the court below is reversed and the case is remanded to Seoul Civil Procedure District Court Panel Division.

The grounds of reappeal are examined.

According to the reasoning of the order of the court below, the court below acknowledged that the re-appellant purchased the real estate from the non-applicant on November 6, 1990 and completed the provisional disposition registration on the same day after receiving the decision of prohibition of disposal on the provisional disposition on November 6, 1990. After that, the court below completed the provisional disposition registration on November 16, 1990 with respect to the real estate in this case by the entrustment of the director of Seoul Central Tax Office. Meanwhile, the re-appellant filed a lawsuit against the above applicant for a lawsuit claiming ownership transfer registration against the above applicant, and the judgment in favor of the re-appellant became final and conclusive on December 5, 1990, the court below rejected the above provisional disposition on the ground that the registered public official applied for the cancellation registration on the ground that the above preliminary disposition became final and conclusive after the completion of the ownership transfer registration on the ground that the disposition did not affect its execution due to the judicial provisional disposition, and even if the disposition of arrears was completed after the prohibition of disposal on the real estate, if the right holder of provisional disposition cannot claim priority against delinquent disposition on the property.

However, the effect of the provisional disposition can be denied within the scope of the right to be preserved if the provisional disposition becomes final and conclusive after the prohibition of disposal of the real estate has been registered and the right to the provisional disposition becomes final and conclusive after the judgment of winning the lawsuit on the merits of the case, and such priority effect of the provisional disposition cannot be viewed as different because the violation is based on

Article 35 of the National Tax Collection Act provides that "the disposition for arrears shall not affect the execution of the disposition for provisional attachment or temporary injunction due to the judicial provisional attachment or temporary injunction, but it is only a provision on the procedural progress that the disposition for arrears does not affect the progress of the disposition for provisional attachment or temporary injunction even if there is a prior provisional attachment or temporary injunction, not a provision that the disposition for arrears

The previous precedents of a party member to this different purport (Supreme Court Decision 73Da905 delivered on January 15, 1974; Supreme Court Decision 83Nu32 delivered on August 23, 1983; Supreme Court Decision 86Meu2408 delivered on June 23, 1987, etc.) are to be changed by this judgment.

Therefore, in the case of this case where the provisional disposition right holder who has obtained a favorable judgment in the lawsuit on the merits and completed the registration of transfer of ownership files an application for cancellation of the registration of seizure based on the disposition on default completed after the provisional disposition is registered, it is unlawful that the registrar dismissed the application without cancelling the registration of seizure made upon his application. However, the court below erred by misapprehending the legal principles as to the effect of provisional disposition and disposition on default, which the court below maintained with the above registration officer'

Therefore, the order of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok (Presiding Justice) Park Jae-ho (Presiding Justice) Park Jae-ho, Park Jae-ho, Park Jong-ho, Park Jong-ho, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho