[1] In the provisional disposition to determine a temporary position, whether the respondent can be entitled to seek the prohibition of an administrative act by the administrative agency's provisional disposition under the Civil Execution Act (negative)

[2] In a case where the creditor Gap set up a collateral security on private taxi owned by Eul to secure the debtor Eul's loan claim, and received "non-disposition of passenger transport business license" from Eul, and sought a provisional disposition prohibiting the transfer of the debtor's name with the competent administrative agency as the third debtor, the case holding that the part seeking the prohibition of the transfer of the debtor's name is not permissible, but the part seeking the prohibition of the transfer of the debtor's name can be permitted

[1] The provisional disposition to determine a temporary position as stipulated in Article 300(2) of the Civil Execution Act, by its nature, may apply for provisional disposition by a person who has a legitimate interest in the disputed legal relationship by his/her assertion itself, and in such a case, the person who is in the position contrary to the applicant by himself/herself must be the respondent. Meanwhile, it is not permissible to seek a prohibition of an administrative act by an administrative agency due to

[2] In a case where the creditor Gap set up a mortgage on private taxi owned by Eul in order to secure the debtor Eul's loan claim, and received the "non-disposition of passenger transport business license" from Eul because it is likely to dispose of a license together with the above private taxi, and sought a provisional disposition not to dispose of the license against Eul, and the competent administrative agency as the third debtor is the third debtor, the case holding that in a case where the creditor Gap sought a provisional disposition not to dispose of the license against Eul as well as a disposition not to dispose of the passenger transport business license against Eul, the part seeking the prohibition of the change of the debtor's name can not be permitted since it is against the provisional disposition under the Civil Execution Act, and the part seeking the prohibition of disposal against Eul can be permitted because it aims to define a temporary position as to the relation of the right of claim

[1] Article 300 (2) of the Civil Execution Act / [2] Article 300 (2) of the Civil Execution Act

[1] Supreme Court Decision 62Da820 delivered on February 7, 1963 (No. 11-1, 56) 92Ma54 delivered on July 6, 1992 (Gong192, 2511), Supreme Court Decision 96Da15916 delivered on July 25, 197 (Gong1997Ha, 2658)

The Seocho-gu Saemaul Bank

The debtor

Jeonju District Court Order 2010Ra151 dated September 27, 2010

The part of the order of the court below concerning the application for provisional disposition against the debtor shall be reversed, and that part of the case shall be remanded to the Jeonju District Court Panel Division. The remaining reappeals shall be dismissed.

The grounds of reappeal are examined.

A provisional disposition to determine a temporary position as stipulated in Article 300(2) of the Civil Execution Act may, in light of the nature of the provisional disposition, apply for such provisional disposition by a person who has a legitimate interest in relation to the legal relationship in dispute by himself/herself, and in such a case, the respondent shall be the person who is in conflict with the applicant by himself/herself (see, e.g., Supreme Court Decisions 62Da820, Feb. 7, 1963; 96Da15916, Jul. 25, 197). Meanwhile, seeking a prohibition of an administrative act by a provisional disposition under the Civil Execution Act shall not be permitted (see, e.g., Supreme Court Order 92Ma54, Jul. 6, 1992).

According to the reasoning of the order of the court below and the record, the ground for the application for provisional disposition of this case by the re-appellant was that on February 17, 2009, the non-disposition of passenger transport business license for the above individual taxi (hereinafter "the above license of this case") was obtained from the debtor in order to secure loan claims by lending KRW 20 million to the debtor on February 17, 2009, and the debtor established a collateral security right to private taxi (hereinafter "non-disposition of passenger transport business license of this case") and the debtor did not transfer the above individual taxi to a third party, etc., or does not dispose of the above individual taxi (hereinafter "the above license of this case"). The debtor could dispose of the above license of this case together with the above individual taxi, so the debtor is likely to be subject to disposition of this case, the order of prohibition of disposition of the license of this case against the debtor of this case was sought as the third debtor, which is the competent administrative agency of the license of this case, and the debtor of this case is sought provisional disposition for the prohibition of change of the name of the license of this case.

Examining this in light of the above legal principles, the previous liquor market, which is the administrative agency having jurisdiction over the license of this case, among the application for provisional disposition of this case, is the third debtor, and thus, it cannot be permitted as it seeks a prohibition of authorization pursuant to the above licensing disposition of the administrative agency due to provisional disposition under the Civil Execution Act. However, the part against the debtor seeking prohibition of disposition of this case against disposition of this case against the debtor can be deemed that the re-appellant may apply for provisional disposition of prohibition of disposition against the debtor in order to determine temporary status as to the relation of right, such as the right to claim prohibition of disposition of this case, based on the letter of this case. Thus, the court below should have further deliberated and judged the existence and necessity of preservation right

Nevertheless, the court below maintained the decision of the court of first instance that dismissed all of the provisional disposition application of this case solely on the ground that it is inappropriate for the court to seize and liquidate the license of this case in the case of automobile transport business license, such as the license of this case, by means of compulsory execution. Of these, the decision of the court below is erroneous in the misapprehension of legal principles as to provisional disposition to determine temporary status in the previous main market, and its conclusion is just. However, in the part concerning the application for provisional disposition to prohibit the change of name as to the previous main market, it is erroneous in the misapprehension of legal principles as to provisional disposition to determine temporary

Therefore, among the judgment of the court below, the part of the application for provisional disposition against the debtor is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)