Whether the applicant for provisional disposition maintains the benefit of the application for provisional disposition in case where the ownership transfer registration has been made in the third party with respect to the real estate after the provisional disposition was cancelled by the execution of the decision on revocation of provisional disposition (negative)

Articles 300(1), 305, and 307 of the Civil Execution Act

Supreme Court Decision 93Da60274 Delivered on August 22, 1995 (Gong1995Ha, 3231) Supreme Court Decision 96Da42307 Delivered on October 13, 1998 (Gong1998Ha, 2650) Supreme Court Decision 2006Meu2580 Delivered on November 30, 2007

Respondent 1 and 7 others

Applicant

Other Party

Seoul Western District Court Order 2007Ra167 dated February 19, 2008

The reappeal shall be dismissed. The costs of reappeal shall be borne by the respondent.

Judgment ex officio is made.

Where a provisional disposition is cancelled by the execution of a decision to revoke a provisional disposition, the effect of the provisional disposition is conclusive. Thus, a person who has completed the registration of ownership transfer for the real estate concerned may oppose the applicant for the provisional disposition with the effect of acquiring the ownership without any restriction on the real estate, and as such, where the ownership transfer registration has been made in the name of a third party for the real estate in dispute, the applicant for the provisional disposition shall no longer have the benefit to apply for the provisional disposition order (see Supreme Court Decisions 96Da42307, Oct. 13, 1998; 2006Meu2580, Nov. 30, 2007, etc.).

According to the records, the respondent filed an application for provisional disposition against the applicant for the prohibition of disposal of the real estate in this case, and received a provisional disposition from the court, and completed a provisional disposition registration for each of the real estate in this case by execution. Upon the applicant's application for provisional disposition, the court decided to revoke the provisional disposition. The respondent filed an immediate appeal, but on September 3, 2007, the provisional disposition registration for the real estate in this case was revoked on September 3, 2007, and thereafter on December 6, 2007, the provisional disposition registration for the prohibition of disposal was completed in relation to the real estate in this case in the name of the succeeding intervenor.

Therefore, since the application for provisional disposition of this case has already been invalidated and becomes unlawful, the respondent's appeal is without merit. The judgment of the court below is just in the conclusion that the respondent's appeal is dismissed, and the costs of reappeal are to be borne by the respondent and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)