In case where a provisional disposition creditor filed a lawsuit on the merits and received a favorable judgment after ten years from the date of execution of a provisional disposition prohibiting disposal of real estate under the former Civil Procedure Act, whether the provisional disposition creditor may claim the effect of provisional disposition as to the registration of transfer of ownership in another person’s name, which was made before the judgment revoking the provisional disposition after execution (affirmative

Article 706 (2) of the former Civil Procedure Act applicable mutatis mutandis to a provisional disposition under Article 715 of the same Act (amended by Act No. 6626 of Jan. 26, 2002) is merely that the debtor may file a lawsuit seeking revocation of the provisional disposition if the creditor fails to file a lawsuit on the merits within 10 years from the execution date of the provisional disposition, and it cannot be deemed that the effect of the provisional disposition is extinguished as a matter of course even without the judgment revoking the provisional disposition, or that the provisional disposition is extinguished retroactively at the expiration of 10 years from the execution date when the judgment revoking the provisional disposition becomes final and conclusive, unless there are special circumstances such as the utilization of the provisional disposition by using the same right as another right, even though the provisional disposition has become void, it cannot be interpreted that the third party who acquired the right contrary to the provisional disposition cannot be asserted against the right to file a provisional disposition, and this legal principle also applies to the point that the ownership transfer registration at the time of the lawsuit or the execution date of the provisional disposition becomes more than 10 years after the execution date.

Article 706 (2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (Article 288 (4) of the current Civil Execution Act) Article 715 (Article 301 of the current Civil Execution Act)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant

Seoul District Court Decision 2002Na7939 delivered on September 5, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the misapprehension of the legal principle as to the revocation of the disposition prohibition

Article 706 (2) of the former Civil Procedure Act applicable mutatis mutandis to a provisional disposition under Article 715 of the same Act (amended by Act No. 6626 of Jan. 26, 2002) applies mutatis mutandis to the provisional disposition is merely that the debtor may file a lawsuit seeking revocation if the creditor fails to file a lawsuit on the merits within 10 years from the execution date of the provisional disposition, and that no lawsuit on the merits has been filed for 10 years after the execution date of the provisional disposition, it cannot be deemed that the effect of the provisional disposition is extinguished as a matter of course even without the judgment revoking the provisional disposition, or that the effect of the provisional disposition is extinguished retroactively at the expiration of 10 years from the execution date of the provisional disposition when the judgment revoking the provisional disposition becomes final and conclusive, barring any special circumstance such as the utilization of the provisional disposition by using the same right as another right, the third party who acquired the right contrary to the provisional disposition cannot be viewed as a provisional disposition. This legal principle is no different from the time when the ownership transfer registration was filed.

The Supreme Court precedents, where the plaintiff, at the time of ten years after the entry registration of provisional disposition, have been filed by the creditor at the time of the lawsuit on the merits, are relevant to the case where the lawsuit on the provisional disposition is filed by the debtor before the judgment on the merits became final and conclusive, and it cannot be a proper precedent to change the case.

The ground of appeal on this part is without merit.

2. As to the violation of the rules of evidence against the fact that the registration of ownership transfer in the name of the defendant is null and void, among the grounds of appeal

The lower court determined that there was insufficient evidence to acknowledge that the instant provisional disposition or the registration of transfer under the name of the Defendant was made based on the false conspiracy between the Nonparty and the Defendant, or that the instant real estate was made based on the title trust with the Nonparty or against the good faith principle.

In light of the records, the judgment of the court below that there is no evidence to acknowledge false conspiracy or title trust is just, and there is no violation of the rules of evidence, and the defendant is not an interested party in the auction procedure, and there is no ground to deem that the defendant, who is already under a safe preservation measure through a provisional disposition, becomes final and conclusive in the judgment of winning the principal case, and that the plaintiff purchased the real estate of this case with the knowledge that the provisional disposition registration was already made on the real estate register of this case at the time of the successful bid, and that the plaintiff had sufficient opportunity to recover the successful bid price by estimating the warranty liability between the bid price paid by the plaintiff after the transfer registration of ownership in the name of the plaintiff was cancelled and the successful bid price paid by the plaintiff was distributed.

Therefore, the judgment of the court below is not erroneous in the violation of the rules of evidence, and this part of the grounds for appeal is not justified.

3. Conclusion

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 Zwon (Presiding Justice)