Applicant (Law Firm Sejong, Attorneys Kang Dong-soo et al., Counsel for the plaintiff-appellant)

Respondent 1 and three others (Attorney Ansan-chul et al., Counsel for the defendant-appellant)

1. Each of the instant applications filed against the respondent is dismissed.

2. The litigation costs shall be borne by the applicant;

With respect to a case where the respondent and Nonparty 1 (non-party to the judgment of the Supreme Court) applied for provisional disposition prohibiting disposal of real estate between Suwon District Court 2006Kadan103637, the part concerning each real estate listed in the separate sheet No. 1 through No. 4 of the provisional disposition order rendered on October 18, 2006 shall be revoked.

1. In full view of the records and the overall purport of the examination of this case, the following facts are substantiated.

(a) The details of land partitioning;

(1) The land miscellaneous land of 13,020 square meters and miscellaneous land of 13,306 square meters and miscellaneous land of the same Ri (2 omitted) located within the area subject to land transaction permission (hereinafter “pre-division land”) was merged into 16,323 square meters on April 26, 2006 with the land of miscellaneous land of 16,323 square meters located in the area of the Seosung-si located within the area subject to land transaction permission, and was divided into 3,032 square meters in each of the real estate and the land of miscellaneous land in the attached Table, and miscellaneous land of miscellaneous land of 3,032 square meters in the area of the Seosung-si located in the attached Table (hereinafter “3 omitted), and 280 square meters in the area of the same Ri (hereinafter “4 omitted).

(2) Each real estate listed in the separate sheet among the above partitioned land, which was owned by Nonparty 1 and Nonparty 2, was divided as above, and became the sole ownership of the Defendant.

B. Lawsuits between the respondent and Nonparty 1

(1) On October 13, 2006, on August 4, 2005, the respondent made an application for provisional disposition against disposal of each real estate listed in the separate sheet (Ywon District Court 2006Kadan103637) with the right to claim the transfer registration of ownership on August 4, 2005 between Nonparty 1 and Nonparty 1 as the preserved right, and the respondent obtained the decision of acceptance on October 18, 2006 (hereinafter “the provisional disposition order of this case”). The execution was completed on October 23, 2006.

(2) On October 23, 2006, the respondent filed a lawsuit against Nonparty 1 on August 4, 2005 against each of the real estate listed in the separate sheet for the performance of the procedure for registration of transfer of ownership on the ground of sale on August 4, 2005 ( Suwon District Court 2006Gahap19361) and was rendered a favorable judgment on June 21, 2007. During the appellate trial (Seoul High Court 2007Na67564), the respondent filed an appeal against Nonparty 1 and the applicant filed a favorable judgment on May 16, 2008, by changing the purport of the claim and the ground for the claim regarding the real estate listed in the separate sheet into a lawsuit seeking the performance of the procedure for registration of land transaction permission. However, the appeal filed against Nonparty 1 and the applicant, which became final and conclusive by the Supreme Court, was dismissed on September 25, 2008.

(3) On November 28, 2008, the respondent obtained land transaction permission from the Sungsung market to the seller for each real estate listed in the separate sheet as Nonparty 1 and the buyer as the respondent.

C. Lawsuit, etc. between the applicant and Nonparty 1

(1) On October 26, 2006, the applicant filed a claim against Nonparty 1 for the registration of ownership transfer of each real estate listed in the separate sheet Nos. 1 through 4, with the provisional disposition of prohibition of disposal (U.S. District Court 2006Kadan103743), and executed it on October 30, 2006.

(2) On November 13, 2006, the applicant filed a lawsuit against Nonparty 1 on September 15, 2004, demanding the implementation of the procedure for the registration of ownership transfer (No. 2006Gahap20828, Suwon District Court Decision 2006) against Nonparty 1, and was sentenced to a favorable judgment (a judgment without a pleadings) on April 19, 2007.

(3) On June 7, 2007, the applicant filed against Nonparty 1 the claim for the procedure of filing a land transaction application with respect to each of the real properties listed in the separate sheet Nos. 1 through 4 as the preserved right, and executed it on the same day after obtaining a provisional disposition prohibiting the disposal (U.S. District Court Decision 2007Kadan102222).

(4) Based on the above favorable judgment rendered against Nonparty 1, the applicant filed a registration for the transfer of ownership in the name of the applicant on January 25, 2010 with respect to each real estate listed in [Attachment List Nos. 1 to 4].

2. The parties' assertion

A. The applicant asserts that the lawsuit on the merits of the provisional disposition of this case is a lawsuit on the ground that the respondent purchased land listed in the separate sheet without obtaining land transaction permission against Nonparty 1, and that the decision on the provisional disposition of this case should be revoked on the ground that it is not a lawsuit pending in this court (No. 2009Na92045) which was filed after obtaining land transaction permission after obtaining land transaction permission. Thus, the decision on the transfer from the Suwon District Court to this court is not binding by the transfer deprived of violation of jurisdiction and the interests of the instance, and since it did not file a lawsuit that can be assessed as a lawsuit on the merits of this case for three years after October 23, 2006 on which the provisional disposition of this case was executed.

B. In addition, the applicant has received the provisional disposition on the real estate stated in Articles 1 through 4 of the separate sheet to preserve the right to claim ownership transfer registration without the land transaction permission by the respondent. The provisional disposition is unfair in the absence of the right to preserve. ② Even if the land transaction permission is valid after the provisional disposition decision, the invalid provisional disposition shall not be deemed effective retroactively from the beginning. ③ Since the applicant already received not only the provisional disposition to preserve the right to claim ownership transfer registration but also the provisional disposition to preserve the right to claim the land transaction permission procedure execution procedure, the respondent cannot set up against the applicant at least, and ④ the respondent has withdrawn the lawsuit, and was rendered a favorable judgment by filing a new claim to perform the land transaction permission procedure performance, and thus, the effect of the prohibition of re-instigation under Article 267(2) of the Civil Procedure Act has occurred, and thus, the provisional disposition in this case has become void.

3. Determination

A. As to the assertion of violation of jurisdiction

(1) The applicant has different grounds for the claim between the respondent and the non-party 1 (2009Na92045) in the instant provisional disposition decision and the lawsuit pending in this court (2009Na92045). Thus, it is not binding on the Suwon District Court which received the instant application to deprive the court of the interests of the court. However, it is apparent that both the instant provisional disposition decision and the above lawsuit pending in this court and the above lawsuit are subject to the claim for ownership transfer registration on each real estate listed in the separate sheet between the respondent and the non-party 1. Thus, the above case pending in this court cannot be deemed as not subject to the principal lawsuit on the instant provisional disposition on the sole basis of the fact that the respondent and the non-party 1 were changed.

(2) Where the merits of a case on cancellation of a preservative measure due to changes in circumstances are already pending, the competent court of the merits shall have jurisdiction over the case on cancellation (Article 310, Article 288(1)1, the proviso to Article 288(2) of the Civil Execution Act), the competent court of the merits, in principle, shall be the court of the first instance, but where the principal suit is pending in the appellate court at the time of the application for cancellation of the preservative order, the appellate court shall have jurisdiction over the appellate court (proviso to Article 311 of the Civil Execution Act), and in such cases, the appellate court may hold a trial at the first instance, and thus, the appellate

On December 1, 2009, when the applicant filed an application for the revocation of the provisional disposition of this case, the fact that the lawsuit on the merits was pending in this court is apparent in this court. Thus, the appellate court, which is the legal ground of the merits, has the jurisdiction only, and the decision that the court of first instance transferred the case to this court, which is the legal competent court

Therefore, the applicant's above assertion is without merit.

B. As to the assertion that the revocation should be made inasmuch as no lawsuit on the merits was filed for three years

The fact that the respondent was executed on October 23, 2006 by the provisional disposition order of this case, which was received by the respondent against the non-party 1, was recognized as above, and the respondent filed a lawsuit claiming ownership transfer registration against the non-party 1 on each real estate stated in the separate sheet with the Suwon District Court on February 16, 2009 is significant in this court. Thus, the respondent's above assertion is without merit.

C. As to the assertion that the provisional disposition order received without obtaining land transaction permission is invalid and retroactively effective, and the respondent cannot oppose the applicant on the ground of the instant provisional disposition order

(1) The grounds for revocation of a preservative measure are stipulated in law. The applicant's assertion that there was no preserved right at the time of the decision of provisional disposition, or that the respondent cannot oppose the applicant due to the decision of provisional disposition of this case. Such assertion is clear by itself that it does not constitute grounds for revocation of provisional disposition, such as the nature of the principal proposal period, the provision of security, changes in circumstances, and special circumstances, which are stipulated in the Civil Execution Act.

(2) In addition, the right to be preserved in a preservative measure is not definitely created at the time of the application, and any claim that has not already existed as to the basis of the occurrence may also be preserved for the preservative measure. As seen earlier, the respondent entered into a sales contract on each real estate listed in the separate sheet on August 4, 2005, and obtained land transaction permission from the Sungsung market on November 28, 2008, so the above sales contract was retroactively effective, and the respondent is deemed to have the right to claim ownership transfer registration of each real estate listed in the separate sheet as to the non-party 1, and the respondent cannot be deemed as null and void as a matter of course solely on the ground that the claim for ownership transfer registration was not finally established at the time of the application for the provisional disposition.

Therefore, the applicant's above assertion is without merit.

D. As to the assertion that the right to be preserved is extinguished under the prohibition of re-instigation

As seen earlier, the respondent filed a lawsuit against the non-party 1 seeking the implementation of the procedure for registration of ownership transfer after the decision of provisional disposition in this case was rendered in favor of the court on June 21, 2007, and changed the lawsuit seeking the implementation of the procedure for registration of land transaction transfer to a lawsuit seeking the implementation of the procedure for registration of land transaction transfer after the final judgment was rendered at the appellate court, and thus the lawsuit was withdrawn after the final judgment was rendered. However, seeking the implementation of the procedure for registration of land transaction transfer after obtaining a land transaction permission after obtaining a land transaction permission is different from the interests of the withdrawn lawsuit and the protection of rights is not subject to the principle of prohibition of re-instigation (see Supreme Court Decision 97Da4534

4. Conclusion

It is difficult to view that there is a change in circumstances to revoke the provisional disposition decision of this case only with the grounds for the vindication of the applicant, or that the petition of this case has not been filed for three years after the execution of the provisional disposition decision.

[Attachment of List]

Judges Sung-mun (Presiding Judge)