Whether the withdrawal of a lawsuit on the merits constitutes a change of circumstances which are grounds for revocation of provisional disposition

Even if the principal lawsuit on the provisional disposition is withdrawn before the final judgment, it does not affect the existence of the preserved right, and therefore, as long as it is not recognized that there was a waiver of the preserved intention due to the withdrawal of the lawsuit, the fact of withdrawal of the lawsuit itself does not constitute a change in the situation in the reason of revocation of provisional disposition.

Article 715 (Civil Procedure Act)

Supreme Court Decision 66Da2268 Decided January 24, 1967 (No. 15 ① 38)

Applicant-General Law Firm, Attorney Go Jong-chul, Counsel for defendant-appellant

Respondent

Seoul Civil District Court Decision 91Na29896 delivered on February 11, 1992

The appeal is dismissed.

The costs of appeal shall be assessed against the petitioner.

We examine the grounds of appeal.

Even if the principal lawsuit on the provisional disposition is withdrawn before the final judgment, it does not affect the existence of the right to be preserved, and therefore, it is not recognized that there was a waiver of the intention to preserve the lawsuit due to the withdrawal of the lawsuit, so the fact of withdrawal of the lawsuit itself cannot be viewed as a change in circumstances in the grounds of revocation of provisional disposition (see Supreme Court Decision 66Da2268 delivered on January 24, 1967).

In this regard, the court below recognized the fact that the respondent filed a lawsuit against the applicant and the non-applicant and the Korea National Housing Corporation for the execution of the procedure for ownership transfer registration of the real estate under the Seoul District Court Southern Branch 91Kadan3981, which was the main case of the provisional disposition case in this case, and then withdrawn it once before the judgment was rendered and then subsequently filed the same lawsuit under the same support group 17515. In light of the above facts, even if the respondent withdrawn the above provisional disposition in this case, the respondent cannot be deemed to have renounced his intention to preserve the provisional disposition in this case. Thus, the decision that the respondent did not have renounced his intention to preserve the provisional disposition in this case shall be justified, and there is no error in the misapprehension of legal principles as to the provisional disposition due to changes in circumstances, and there is no error in the misapprehension of legal principles as to the provisional disposition in this case, and the precedents cited in the theory of the lawsuit

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)