[1] In a case where the execution of provisional seizure was executed as a principal execution, whether the execution of provisional seizure can be contested (negative), and whether the revocation of provisional seizure execution affects the principal execution (negative)

[2] The case reversing the order of the court below that revoked the compulsory auction decision on the ground that the provisional attachment registration was revoked as a deposit of an amount for release from provisional seizure in progress by the person holding the provisional attachment for real estate for which ownership transfer registration has been completed in the third party after the provisional attachment registration

[1] Where the provisional attachment was executed after the execution of the provisional attachment, and the provisional attachment was executed as the result of the commencement of the compulsory auction, it has the same effect as the execution of the provisional attachment was included in the principal execution, and as long as the validity of the provisional attachment continues to exist effectively, the other party shall not dispute the validity of the provisional attachment execution and only dispute the validity of the provisional attachment execution. Thus, even if the provisional attachment execution was revoked and not invalidated, it does not affect the principal execution already becoming effective.

[2] The case reversing the order of the court below that revoked the compulsory auction decision on the ground that the provisional attachment registration was revoked due to the deposit of an amount for release from provisional seizure in progress by the person holding the provisional attachment for real estate for which ownership transfer registration has been completed in the third party after the provisional attachment registration

[1] Articles 603, 710, and 713 of the Civil Procedure Act / [2] Articles 603, 710, and 713 of the Civil Procedure Act

[1] Supreme Court Decision 75Da2065 decided Jan. 27, 1976 (Gong1976, 8952)

Re-appellant

Other Party

Seoul District Court Order 2001Ra351 dated October 18, 2001

The order of the court below is reversed and the decision of the court of first instance is revoked. The application for cancellation of the auction procedure is dismissed.

1. The judgment of the court below

A. The record reveals the following facts.

(1) At the time of December 9, 193, the re-appellant completed a provisional attachment registration pursuant to the Seoul District Court Order 93Kadan6335 on the real estate in this case, which was owned by the debtor outside the debtor. On August 7, 1996, the provisional attachment registration was made from the person outside the applicant to the other party.

(2) On August 1, 200, the re-appellant applied for a compulsory auction on the instant real estate based on the executory exemplification of the judgment in the claim for loans No. 94Ga6318 against the non-applicant on August 1, 200, and the first instance court rendered the instant compulsory auction order on August 2, 200.

(3) On October 11, 200, the non-applicant deposited KRW 16,500,000 as deposit money in the above provisional seizure decision, and thereafter on October 23, 200, the non-applicant received the decision to cancel the execution of the above provisional seizure as to real estate indicated in the attached list attached to the order of the court below among the real estate in this case. The counter-applicant submitted a certified copy of the real estate register cancelled as of November 13 of the same year and submitted it to the auction court, and the court of first instance rejected the application for cancellation of the decision to commence the compulsory auction on December 20 of the same year.

(4) On July 23, 2001, on which the appellate trial on the above decision was pending, a decision was made to revoke the execution of the above provisional seizure on the real estate indicated in the attached list 2 and 3 attached to the order of the court below on July 23, 201, and the registration of the provisional seizure was revoked on the 2

B. Based on such factual basis, the lower court determined that, in the instant case where the above provisional seizure registration under the name of the re-appellant, which was completed prior to the registration of transfer of ownership in the name of the other party with respect to the instant real estate, was entirely cancelled, a compulsory execution against the instant real estate registered as owned by the other party cannot be conducted.

2. Judgment of the Supreme Court

Where the provisional seizure was executed after the execution of provisional seizure, and the provisional seizure was executed as the result of the execution of provisional seizure, it has the same effect as the execution of the provisional seizure was executed from the beginning because it was included in the execution of the principal execution, and as long as the validity of the execution remains effective, the other party cannot dispute the validity of the provisional seizure execution and only dispute the validity of the provisional seizure execution. Thus, even if the execution of the provisional seizure was revoked and not invalidated, it does not affect the execution of the principal which already occurred.

Nevertheless, the court below judged that the provisional attachment registration cannot be executed because it was cancelled according to the decision of revocation of provisional attachment execution on the ground of deposit for tidal wave. In this regard, there is an error of law by misunderstanding the legal principles as to the validity of the decision of commencement of compulsory auction executed in provisional attachment.

3. Therefore, the order of the court below is reversed without a need to determine the remainder of the grounds for reappeal, and the Supreme Court decides to render a judgment as to this case, since it is sufficient to render a self-contest. The decision of the court of first instance is revoked and the other party's application for revoking the auction procedure is dismissed as there is no ground for appeal.

Justices Kim Ji-dam (Presiding Justice)