[1] In a case where a lessee of land for the purpose of owning a building registers the acquisition of a real right to the land by a third party before registering the above ground building, whether the lease becomes effective against the third party by the lessee who registered the above ground building (negative)

[2] The validity of the registration of provisional disposition prohibiting disposition, and the criteria for determining whether the act of disposal conflicts with the provisional disposition

[1] Article 622(1) of the Civil Code provides that even if a lessee fails to register the land lease, if the lessee registers the land building, the lease takes effect against the third party. This is merely granting the effect of replacing the land lease registration with the registration of the building for the protection of the lessee of the land who owns the building. Therefore, if a third party registers the acquisition of real right to the land before the lessee registers the land, the lease shall not take effect against the third party even if the lessee registers the land building.

[2] After the registration of provisional disposition is completed with respect to real estate, the effect of the act of disposal in conflict with the provisional disposition may be denied within the scope of the right to preserve the property when the person holding the provisional disposition becomes final and conclusive after obtaining a favorable judgment in the lawsuit on the merits of the case. In this case, whether the act of disposal is in conflict with the provisional disposition shall be determined by the registration following

[1] Article 622(1) of the Civil Act / [2] Article 714 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 300 of the Civil Execution Act)

[1] Supreme Court en banc Order 92Ma903 delivered on February 19, 1993 (Gong1993Ha, 1055) / [2] Supreme Court Decision 82Da129 delivered on October 12, 1982 (Gong1982, 1078), Supreme Court Decision 92Ma903 delivered on February 19, 1993 (Gong1993Ha, 1055)

Plaintiff (Attorney Kim Yong-sik, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Jong-chul, Counsel for the defendant-appellant)

Changwon District Court Decision 200Na1550, 8469 delivered on October 19, 2000

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

Article 622(1) of the Civil Act provides that "a lease of land, the object of which is to own a building, shall take effect upon the third party if the lessee has registered the building on the ground, even if the lessee has not registered the building on the ground." This is merely a substitute effect for a registration of land lease for the protection of the lessee of the land who owns the building. Therefore, if a third party has registered the acquisition of real right on the land before the lessee registers the building on the ground before the lessee registers the building, the lease shall not take effect against the third party even if the lessee registers the building on the ground (see Supreme Court Decision 65Da1655 delivered on December 21, 1965). Meanwhile, the effect of the act of disposal contrary to the provisional disposition may be denied within the scope of the right to be preserved when the provisional disposition becomes final and conclusive after the provisional disposition is completed after the judgment on the lawsuit on the merits, and whether the disposal disposition conflicts with the disposal disposition after the decision on the provisional disposition is made by the Supreme Court en banc Order 92Ma903 delivered on February 19, 198.

According to the records, the land of this case was originally owned by the non-party, but the plaintiff (the counter-party defendant; hereinafter referred to as the "the plaintiff") completed the registration of provisional disposition on April 6, 1996, upon receiving a decision of provisional disposition of prohibition of disposal from the Changwon District Court's branch on the provisional disposition of prohibition of disposal. The plaintiff thereafter filed a lawsuit against the above non-party on November 14, 1997, and received a favorable decision on November 14, 1997, and the registration of transfer was completed on August 28, 1998, and on the other hand, the defendant (the non-party plaintiff; hereinafter referred to as the "the defendant") completed the registration of preservation of ownership as to the building of this case on July 15, 1996, after the registration of provisional disposition was completed. Thus, even if the defendant leased the land of this case from the above non-party and constructed the building on the ground of this case, the registration of preservation of the land of this case is not effective prior to the registration of prohibition of disposal.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of the rules of evidence or incomplete deliberation, the violation of the rules of evidence, the validity of a mistake of facts or a provisional injunction, or the misapprehension of the legal principles on Article 622 of the

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 Yoon Jae-sik (Presiding Justice)