(a) The impossibility of performing the obligation of ownership transfer registration due to double transfer and ownership transfer registration for the first buyer;

(b) Validity of registration of a third party acquired on the basis of registration in front of the person subrogated after a provisional disposition prohibiting disposition by subrogation is taken.

A. In the sale of real estate, it is reasonable to view that the seller is in a status of impossibility of performance when the seller has already sold the object to another person and has transferred it to a third person again and passed the registration of ownership transfer to a third person, unless there are special circumstances.

B. The purpose of the provisional disposition prohibiting the disposal of the land owned by the plaintiff on behalf of the defendant (B) is to prevent (B) from disposing of the transfer of ownership, etc. in order to preserve the plaintiff's right to claim the transfer registration of the land owned by the defendant (B). Thus, in the decision of the provisional disposition, the disposition against the third party (B) was ordered in order to prohibit the third party (B) from disposing of the transfer of ownership, etc.

A. Article 390 of the Civil Act: Article 404 of the Civil Act; Article 714 of the Civil Procedure Act

Supreme Court Decision 63Da1071 Delivered on December 15, 1964, 72Da1860,1861 Delivered on December 12, 1972

[Judgment of the court below]

The East Sea General Airport Co., Ltd and one other

Seoul High Court Decision 73Na1680 delivered on April 30, 1980

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal by the Plaintiff’s attorney are examined.

1. On the first ground for appeal:

According to the court below's decision, on December 15, 1975, the non-party 1 was appointed as the representative director of the defendant East Sea Complex Co., Ltd. and completed the registration on January 6, 1976, and even after examining the records, the court below's above recognition is just and there is no error of law in law.

2. On the second ground for appeal:

In light of the above legal principles and records, if the seller of real estate sold the above object to another person and transferred it again to a third party, it is reasonable to view that the seller bears the above duty to register the transfer of ownership to another person, barring any special circumstance. According to the judgment below, the defendant company purchased the land of this case with the permission of reclamation from the Republic of Korea on August 8, 1966, and the plaintiff purchased the land of this case from the defendant company on April 30, 1963, with the approval of the registration of the transfer of ownership transfer from the defendant company's land of this case 8,10 square meters and 290 square meters of the attached Form (C) of the judgment below's attachment to the above land of this case. However, the court below's decision that the above defendant company's claim for the registration of transfer of ownership was invalid by the defendant company's non-party 2 and the above non-party 2's claim for the above cancellation of the registration of transfer of ownership from the defendant company's non-party 97.

3. On the third and fourth grounds:

In the event that a creditor exercises a debtor's right based on the subrogation right and an obligor is aware of such fact, the obligee cannot set up against the obligee. However, as determined by the court below, if the Plaintiff made a provisional disposition on behalf of the defendant company as to the above (2) land owned by the defendant Republic of Korea (in this case, the registration of preservation of ownership in the name of the defendant Republic of Korea was not made at the time of the decision of prohibition of disposal) on behalf of the defendant company, the purpose of the Plaintiff is to prevent the Plaintiff from doing such act as transfer of ownership to any person other than the defendant company in order to preserve his right to claim registration of transfer of ownership. Therefore, even if the provisional disposition prohibits the disposal of the defendant Republic of Korea against the third party, the provisional disposition is not included in the third party, so long as the defendant company received the registration of transfer from the defendant Republic of Korea after the provisional disposition, the purpose of such provisional disposition is achieved, and therefore, the above provisional disposition cannot be viewed as null and void, and it does not constitute an error in the misapprehension of legal principles as to the registration of transfer of ownership against the defendant company.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice)