(a) In a case where a judgment of dismissal is rendered in the lawsuit on the merits of a provisional disposition, whether it constitutes a change in circumstances, which are the grounds for revocation

(b) The case rejecting a claim to revoke provisional disposition due to changes in circumstances on the grounds that it cannot be deemed impossible to release the provisional disposition from attachment on the grounds that the preserved claim was seized by a third party and that the collection judgment became final and conclusive;

A. In a case where an applicant for a provisional disposition has received a judgment against him on the grounds of substantive law in the lawsuit on the merits of a provisional disposition, changes in circumstances as stipulated in Articles 715 and 706 of the Civil Procedure Act may be deemed to exist, and in this case, the usefulness of a lawsuit on the merits is not permitted, but in a case where he has received a judgment dismissing

B. The case rejecting the claim for revocation of provisional disposition due to changes in circumstances on the ground that Gap's creditor's claim for prohibition of disposal of Byung's real estate on Eul's behalf of Eul was attached to Eul's creditor's claim for prohibition of disposal of Byung's real estate and the final and conclusive judgment was filed after Eul's creditor's claim for collection, and that Gap's original decision was ordered Byung to implement Eul's ownership transfer registration procedure on the condition of cancellation of seizure, even though Gap's original decision which won the new lawsuit against Byung was ordered to Byung, since the execution of the collection judgment does not seem to have been actually executed, since the collection judgment became final and conclusive cannot be said to have become impossible as a matter of course or that it cannot be expected any longer in light of the transaction concept in the general society.

(a)Articles 706 and 715 of the Civil Procedure Act, Section 205(b) Articles 577 and 582 of the Civil Procedure Act;

A. Supreme Court Decision 92Da9449 delivered on June 26, 1992 (Gong1992, 2273) B. Supreme Court Decision 83Meu122 delivered on April 10, 1984 (Gong1984, 810)

Daedong Construction Co., Ltd., Counsel for the plaintiff-appellant

Respondent

Seoul High Court Decision 94Na5177 delivered on July 15, 1994

The appeal is dismissed.

The costs of appeal shall be assessed against the petitioner.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below accepted the provisional disposition of this case against the applicant on July 27, 191 against the Incheon District Court 91Ka16441, which was issued against the respondent on the ground that the respondent purchased the real estate from the non-applicant 2 via the non-applicant 1, and decided to dispose of the real estate of this case. The respondent, as the principal lawsuit of the above provisional disposition, sold the real estate of this case owned by the applicant to the non-applicant 1 as the above 91Ka16262, and the non-applicant 1, as the non-applicant 2, asserted that the non-applicant 2 had sold the real estate of this case to the non-applicant 1 in order to the non-applicant 2, and that the non-applicant 1, the non-applicant 2 and the non-applicant 1, who claimed the ownership transfer registration procedure of this case, had no further been confirmed on the ground that the non-applicant 1, the non-applicant 2, who claimed ownership transfer registration procedure of this case, was purchased from the respondent 1,

2. Regarding ground of appeal No. 1

In a case where an applicant for a provisional disposition in a lawsuit on the merits of a preservative measure has been ruled against him on the grounds of substantive law, there may be changes in the circumstances as stipulated in Articles 715 and 706 of the Civil Procedure Act. In such a case, the usefulness of a lawsuit on the merits may not be permitted (see, e.g., Supreme Court Decision 63Da354, Sept. 12, 1963; Supreme Court Decision 65Da2201, Jan. 25, 1966; Supreme Court Decision 66Da1856, Jan. 24, 1967).

In this case, even if the respondent's lawsuit seeking the performance of the procedure for ownership transfer registration against the petitioner 1 is deemed to be the principal lawsuit of the provisional disposition of this case, the respondent is merely dismissed on the ground of the law of the lawsuit. Since the respondent filed a new lawsuit on the merits as corrected and won a favorable judgment, the above dismissal judgment alone does not lead to a change in circumstances where the cancellation of provisional disposition can be revoked, and there is no room for doubt as to the utility of the principal lawsuit of this case. The grounds for appeal pointing this out cannot be accepted.

3. Regarding ground of appeal No. 2

The court below held that the right to the provisional disposition of this case is the respondent's right to claim the registration of transfer against the non-applicant No. 2. However, even according to the facts acknowledged by the court below, the respondent purchased the real estate of this case from the non-applicant No. 1 through the non-applicant No. 2, and the non-applicant No. 1 transferred contractual status and the provisional disposition of this case was taken in subrogation of the transferor of the real estate of this case against the applicant. Thus, the respondent's right to claim the registration of transfer against the non-applicant No. 2 is the right to claim the registration of transfer to the non-applicant No. 2 (see Supreme Court Decision 88Meu6488 delivered on May 9, 1989) and the above judgment of the court below is erroneous.

However, as alleged by the applicant in this case, the non-party Samsung A&S corporation seized the claim for transfer registration against the non-party 2 in the name of debt against the non-party 2 in order to enforce the claim for transfer registration against the non-party 2, and received a final and conclusive judgment by filing a lawsuit for collection. Even though the respondent newly filed a suit and ordered the applicant to implement the transfer registration procedure in the non-party 2's future on the condition of the cancellation of the above seizure, it cannot be said that the above seizure became impossible as a matter of course or that the above collection judgment became final and conclusive, or that the above collection judgment cannot be expected any longer in light of the transaction concept in the general society, unless it is shown in the record that the execution of the above collection judgment became final and conclusive, or that the claim for transfer registration of ownership against the applicant 2 cannot be deemed to have become impossible merely because the above circumstance alone. Therefore, the judgment of the court below that the right to preserve the provisional disposition in this case had affected the judgment below's conclusion, and it cannot be accepted as a change in circumstances in the grounds for appeal.

4. Therefore, the appeal is dismissed and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)