[1] Whether the appellate brief is treated as not having been filed in the absence of specific and explicit explanation of the court below's violation of laws and regulations (affirmative)

[2] Where a provisional disposition creditor completed a provisional disposition registration as to the co-ownership share of the provisional disposition obligor, and the provisional disposition obligor became final and conclusive with a decision of recommending a compromise based on the remaining co-owners and auction as to co-owned property partition, whether it constitutes an act of disposal prohibited from provisional disposition (affirmative in principle)

[1] The court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the statutes. Therefore, if the grounds of final appeal submitted by the appellant does not explain such specific and explicit reasons, it shall be treated as failing to submit the grounds of final appeal.

[2] Where a provisional disposition creditor obtains a favorable judgment in the lawsuit on the merits after the registration of provisional disposition is completed, or where a provisional disposition creditor has made a registration of ownership transfer registration or ownership cancellation registration based on a substantive legal relationship which forms the basis of a provisional disposition jointly with the debtor on the merits, the provisional disposition creditor may deny the effect of the disposal act in violation of provisional disposition to the extent of

On the other hand, the judgment ordering the distribution of the proceeds from sale by attaching the jointly owned property to the auction is a special form judgment under the condition of auction, which aims to uniformly resolve the co-ownership relationship for all co-owners. If the provisional disposition obligee completed the provisional disposition prohibiting disposal as to the share of the provisional disposition obligor, and the provisional disposition obligor received and confirmed the decision recommending the co-ownership of co-owned property through auction as above with the remaining co-owners, barring any other special circumstances, it constitutes a disposal act prohibited from the provisional disposition.

[1] Articles 423, 427, and 429 of the Civil Procedure Act; Article 129 of the Rules of Civil Procedure / [2] Article 269 of the Civil Act; Articles 300 and 305(3) of the Civil Execution Act

[1] Supreme Court Decision 200Da29356, 29363 decided Mar. 23, 2001 (Gong2001Sang, 948) / [2] Supreme Court Decision 79Ma5 decided Mar. 8, 1979 (Gong1979Ha1890) Supreme Court Decision 2010Da2558 decided May 10, 201 (Gong2012Sang, 969)

Plaintiff (Appointed Party)

Defendant (Attorney Shin-chul et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2016Na107286 Decided February 10, 2017

The part of the judgment of the court below against the plaintiff (appointed party) and the appointed party 3 shall be reversed, and that part of the case shall be remanded to the Daejeon District Court Panel Division. The appeal by the appointed party 2 shall be dismissed. The costs of appeal between the appointed party 2 and the defendant shall be borne by the appointed party 2.

The grounds of appeal are examined.

1. As to the Appointed 2's appeal

The court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the law. Thus, the grounds of final appeal should be treated as failing to submit the grounds of final appeal unless the grounds of final appeal submitted by the appellant contain such specific and explicit reasons (see Supreme Court Decision 2000Da29356, 29363, Mar. 23, 2001).

The ground of appeal of this case does not state any part of the judgment below as to the designated party 2's claim, and does not state any matter that may be the ground of appeal, as well as any other part of the judgment below as to how it violated the law. Thus, the grounds of appeal as to the claim are not submitted. The petition of appeal does not state any grounds of appeal as to it.

2. As to the grounds of appeal by Plaintiffs (Appointeds) and 3

A. Where a provisional disposition creditor obtains a favorable judgment in the lawsuit on the merits after the registration of prohibition of disposal on real estate has been completed, or where a provisional disposition creditor has made a registration of ownership transfer registration or ownership transfer cancellation registration based on a substantive legal relationship that forms the basis of a provisional disposition jointly with the debtor on the merits, the provisional disposition creditor may deny the effect of the act of disposal in violation of provisional disposition to the extent of the preserved right (see Supreme Court Decision 2010Da2558, May 10, 201

On the other hand, the judgment ordering the sale price of the article jointly owned to be attached to an auction, which aims to uniformly resolve the co-ownership relationship with all co-owners (see Supreme Court Order 79Ma5, Mar. 8, 1979, etc.). Thus, if the provisional disposition obligee completed the provisional disposition prohibiting the disposal as to the co-ownership share of the obligor of provisional disposition, and the provisional disposition obligor became final and conclusive after the provisional disposition prohibiting the disposal of the co-ownership with the remaining co-owners, it constitutes an act of disposal prohibited from the provisional disposition prohibiting the disposal, barring any other special circumstances.

B. The court below rejected the Plaintiff (Appointed Party) and 3 (hereinafter “Plaintiff, etc.”)’s assertion to the effect that the substance of partition of co-owned property is merely a change in the ownership form and it cannot be viewed otherwise even if it was conducted by auction and price division, on the ground that Nonparty 1, the provisional disposition obligor, received and confirmed the decision of recommending co-owned property distribution through auction with the Defendant cannot be deemed a disposal act of real estate prohibited from the provisional disposition of this case, and that it does not constitute a successor with res judicata effect of the decision of recommending reconciliation of this case.

C. However, we cannot accept the above determination by the court below for the following reasons.

(1) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① On March 18, 198, Nonparty 1 completed the registration of ownership transfer on the instant land owned by the deceased Nonparty 2 due to a consultation and division, and at that time agreed to the Plaintiff, etc. to allow the registration of ownership transfer to the Plaintiff, etc.

② On March 28, 2012, the Plaintiff et al. received a decision of provisional disposition prohibiting sale, donation, lease on a deposit basis, establishment of a right to lease on a deposit basis, or any other disposal act with respect to the amount of equity interest promised among the instant land by making the right to be preserved against Nonparty 1 as the right to claim for ownership transfer registration under an agreement, and the provisional disposition registration was completed on the same day. In addition, on April 12, 2013, the decision was finalized in lieu of conciliation to order Nonparty 1’s implementation of each procedure for ownership transfer registration against the Plaintiff et al.

③ On the other hand, the Defendant purchased 38/232 of the instant land through a compulsory auction on December 6, 2013, and filed a lawsuit claiming a partition of co-owned property against Nonparty 1 on December 17, 2013, and on December 4, 2014, the decision of recommending reconciliation in the instant case became final and conclusive with the purport that “the Defendant and Nonparty 1 shall attach the instant land to an auction and distribute the remainder excluding auction expenses at each share of the proceeds.”

④ Meanwhile, on February 4, 2015, the Plaintiff, etc.: (a) completed each share transfer registration with respect to the share that Nonparty 1 promised among the instant land; and (b) on March 19, 2015, the Defendant was granted by the court an execution clause to succeed to the Plaintiff, etc. as to the decision of recommending reconciliation in the instant case.

(2) Examining the legal principles as seen earlier in light of the aforementioned factual relations, where Nonparty 1, the provisional disposition obligor, confirmed the decision on recommending the conciliation of co-owned property through auction with the Defendant, it constitutes a disposal act prohibited from the instant provisional disposition. Therefore, the Plaintiff, etc., as a provisional disposition obligee who completed the registration of ownership transfer based on the provisional disposition prohibition prior to the decision on recommending the conciliation of this case, is in a position to deny the validity of the decision on recommending the conciliation of this case, which constitutes a disposal act in violation of provisional disposition within the scope of the preserved right, and thus, cannot be deemed as a successor having res judicata effect

(3) Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so doing, it erred by misapprehending the legal doctrine on the effectiveness of the provisional disposition prohibiting disposition, the disposition prohibiting the provisional disposition, and the nature of the partition of co-owned property by auction, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, etc., the part of the judgment of the court below against the Plaintiff, etc. is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by the Appointor 2 is dismissed, and the costs of appeal between the Appointor 2 and the Defendant are assessed against the losing party.

[Attachment] List of Appointeds: Omitted

Justices Jo Hee-de (Presiding Justice)