In cases where a provisional disposition creditor registers the transfer of ownership or the registration of disposal restriction on the real estate for which the prohibition of disposal is registered to preserve the right to register the establishment of a mortgage, following the registration of the transfer of ownership or the registration of disposal restriction on the real estate for the realization of the right to register the establishment of a mortgage, whether the registration of the transfer of ownership or the registration of disposal restriction, etc. conducted after the registration of the provisional disposition is cancelled (negative), and whether the registration of the provisional disposition creditor may oppose the provisional disposition creditor due to the restriction on the acquisition or disposal of the right registered after the registration of the provisional disposition (negative)

If a creditor of provisional disposition becomes final and conclusive after the provisional disposition on real estate has been registered as a result of winning a judgment in the lawsuit on the merits of the case, the validity of the offense of provisional disposition may be denied within the scope of the right to be preserved. Therefore, in cases where a creditor of provisional disposition registers the transfer of ownership or the registration on the restriction on disposal of the real estate on which the prohibition on disposal has already been registered to preserve the right to claim the registration of establishment of a mortgage, and thereafter a creditor of provisional disposition registers the establishment of a mortgage for the realization of the right to be preserved due to the winning judgment in the lawsuit on the merits of the case, the registration shall not be cancelled because the registration does not interfere with the acquisition of the mortgage by the creditor of provisional disposition, but the restriction on the acquisition or disposal of the right

When making a registration of establishment of mortgage, etc. to realize the right to be preserved after the registration of prohibition of disposal for preserving the right to claim the establishment of mortgage, other than ownership, such as mortgage, is registered together with the purport that the registration of establishment is based on provisional disposition in order to indicate that the acquisition of the right registered after the registration of provisional disposition or the restriction on disposal cannot be set up against the acquisition of mortgage by the creditor of provisional disposition (see Article 95 of the Registration of Real Estate Act). If the registration for realizing the right to be preserved of provisional disposition is made, the provisional disposition shall lose its effect by accomplishing the purpose and the registration of provisional disposition is not necessary to keep the record of provisional disposition. Therefore, if the establishment of mortgage is registered for realizing the right to be preserved after the registration of provisional disposition for preserving the right to claim the establishment of mortgage, even if the registration of provisional disposition is revoked thereafter

Articles 300(1), 305(3) of the Civil Execution Act, Articles 4, 5, and 95 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)

Current Sea Construction Co., Ltd. (Law Firm Goun, Attorney Park Jong-sub, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 2014Na2023780 decided November 28, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. If a provisional disposition creditor becomes final and conclusive after the provisional disposition prohibition against disposal of real estate has been registered in favor of the principal lawsuit on the merits of the case, the validity of the provisional disposition offense may be denied within the scope of the right to be preserved (see Supreme Court Decision 2000Da65802, 65819, Feb. 28, 2003). Therefore, in cases where a provisional disposition prohibition to preserve a right to claim the establishment registration of a mortgage has already been registered, the registration of ownership transfer or disposal restriction has been made after the provisional disposition registration, and where the provisional disposition creditor establishes a mortgage registration for the realization of the right to be preserved due to the winning decision in favor of the principal lawsuit, the registration of ownership transfer registration or disposal restriction, etc., which was made after the provisional disposition registration, does not interfere with the acquisition of the mortgage by the provisional disposition creditor, and thus, it cannot be asserted against the provisional disposition creditor due to the restriction on the acquisition or disposal of the right registered after the provisional disposition registration,

When making a registration of establishment of mortgage, etc. to realize the right to be preserved after the registration of prohibition of disposal for preserving the right to claim the establishment of mortgage, other than ownership, such as mortgage, was made to register the fact that the registration of establishment is based on provisional disposition in order to indicate that the acquisition of the right registered after the registration of provisional disposition or the restriction on disposal cannot be asserted against the acquisition of mortgage, etc. by the creditor of provisional disposition (see Article 95 of the Registration of Real Estate Act). As can be seen, if the registration for realizing the right to be preserved of provisional disposition is made, it is merely merely because the purpose of provisional disposition is attained and its effect is lost and that the registration of provisional disposition is not necessary to keep such right. Therefore, if the registration of establishment of mortgage to realize the right to be preserved after the registration of provisional disposition is made, even if the registration of provisional disposition is revoked thereafter, it cannot be asserted

2. According to the reasoning of the judgment of the court of first instance as cited by the court below and the records, with respect to each section of exclusive ownership of the building of this case, which is owned by Guro-si Co., Ltd. (hereinafter "ro-si"), the registration of provisional disposition prohibiting the disposal of this case (hereinafter "provisional disposition of this case") was completed on January 5, 2009 to preserve the Plaintiff's right to claim the registration of establishment of mortgage against the Guro-si, and on December 24, 2009, the registration of the non-party's decision of commencement of compulsory auction was completed on the non-party's application, and thereafter, the plaintiff's request for provisional disposition of this case was revoked by the non-party 4,941,400,000 as to each section of exclusive ownership of the building of this case, and the non-party 2's request for provisional disposition was revoked by the court of first instance on January 5, 2011, and the defendant received the registration of establishment of mortgage of this case as the non-party 3 provisional disposition.

Examining these facts in light of the legal principles as seen earlier, the establishment registration of a mortgage in the Plaintiff’s name is a registration for the realization of the right to be preserved for the instant provisional disposition, and it cannot be asserted against the Plaintiff’s acquisition of mortgage due to the effect of seizure by the decision on commencement of compulsory sale registered after the registration of the instant provisional disposition, and the same applies even if the registration of the instant provisional disposition was revoked thereafter. Accordingly, the secured claim of the Plaintiff’s mortgage from the proceeds from sale of each section of exclusive ownership

Nevertheless, the lower court determined to the effect that the Plaintiff’s secured claim and the Nonparty’s claim that was entirely distributed to the Defendant should be distributed in proportion to the same order on the grounds that the effect of priority preservation was extinguished by the cancellation of the registration of provisional injunction. In so doing, the lower court erred by misapprehending the legal doctrine on the validity of registration for the realization of the right to be preserved against the provisional injunction

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)