2010Ra731 Revocation of provisional disposition

OOO Fund

O 00 00

Representative President Jin-○

Guide ○ by legal representative

Law Firm Jeong, Attorneys Oh Jeong-hee et al., Counsel for defendant-appellant

○○ Corporation

OO-si OO ○ ○○ ○○

Representative Director ○ Kim

Attorney Kim Jong-type, Counsel for the plaintiff-appellant

Seoul Central District Court Order 2010Kahap539 Dated April 6, 2010

oly 13, 2010

1. The decision of the first instance shall be revoked;

2. The applicant's motion to revoke the provisional disposition of this case is dismissed.

3. This Court approves the ruling of the suspension of compulsory execution on April 30, 2010 with respect to the case of applying for the suspension of compulsory execution 2010 Chicago715.

4. The total cost of the lawsuit shall be borne by the applicant;

1. Purport of request by the applicant;

In the case of a provisional injunction against real estate disposition between the respondent and the Seoul District Court 96Kahap958

the provisional disposition order of April 10, 1996 (hereinafter referred to as "the provisional disposition order of this case") issued by the above court

(b) revoke this subsection.

2. Purport of request and appeal by the respondent

It is identical to paragraphs 1 and 2 of this Decree.

1. Basic facts

According to the records, each of the following facts is proved:

A. The respondent is a stock company operating ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, to secure access roads to the said golf○○○○○○○.

25. On August 3, 25 of the same year, a total of four lots of land, including 78,942 meters of ○○○○○○○○-gun ○○○○○○-gun ○○○○○○-gun ○○○○-do 46, 45, and 620 meters of forests and fields (in addition to the above two parcels of land, hereinafter referred to as “each of the instant forests and fields”), were purchased from a co-owner, etc. of each of the instant forests.

B. On September 4, 1991 and November 14, 1991, the respondent filed a provisional injunction against the temporary injunction against the disposal of the real estate with the right to the claim for the registration of ownership transfer under each of the above sales contract against the non-party 14 and the non-party 14, and the Seoul District Court 96Kahap958. The above court accepted the provisional injunction against the above non-party 1, including each of the forest of this case on April 10, 1996. The provisional injunction against the land of four parcels which is the object of the sales contract as stated in the above paragraph A was completed on the 13th of the same month.

C. Meanwhile, on March 31, 1995, the applicant filed an application for provisional seizure against real estate with the Gwangju District Court 97Kahap427 using the deposit claim based on the credit guarantee agreement against the defendant corporation as the preserved right, and the above court accepted it and rendered a provisional seizure on April 17, 1997 as to each real estate owned by the ○○○ and the ○○ Co., Ltd. including the share of the instant forest land. The above provisional seizure period was registered on the 21st of the same month.

D. On March 10, 1998, the respondent completed the registration of ownership transfer under the name of the respondent with respect to the shares of all co-owners of each forest of this case. At the time, the grounds for registration was registered as the self-sale contract on September 30, 1997, not each sales contract as stated in the paragraph.

E. Afterward, among each of the instant forests, 00 ○○○-dong ○○○○-dong 78, 942 meters of forest land in this case shall be March 2001.

23. The land listed in the separate sheet Nos. 1 to 3, the above ○○-ri ○○ Forest 45, 620m of square meters is about 201.

3. On October 2003, it was divided into each land listed in separate sheet Nos. 4 to 8, 2003.

F. Since then, the applicant filed a lawsuit claiming reimbursement against this and three other parties in Gwangju District Court 2009Kadan4620 decided Oct. 23, 2009. This decision is based on the following facts:

11. 17. It was finalized as is. The applicant filed an application for the commencement of compulsory auction with respect to a part of the shares in each real estate listed in the separate sheet as an executive title with the U.S. District Court 2010 another and 5000, which was accepted by the above court, and currently in progress the auction procedure.

G. On February 23, 2010, the applicant filed an application for revocation of provisional disposition as Seoul Central District Court 2010Kahap539 on the ground that the provisional disposition order of this case was executed for ten years after the provisional disposition order of this case was executed, and the need for preservation was also extinguished. On April 6, 2010, the above court accepted the above application and rendered the first instance judgment revoking the provisional disposition order of this case.

2. Determination on whether the revocation of provisional disposition is revoked

A. As to the real estate for which a third party's provisional attachment registration has been made after the provisional disposition registration, the right holder may apply for the registration of provisional attachment in the name of the third party and the cancellation of the decision on commencement of compulsory auction based on the provisional attachment by proving that the ownership transfer registration is the ownership transfer based on the provisional disposition alone if the third party applies for a compulsory auction with the provisional disposition obligor.

According to the case, although the respondent did not file a lawsuit on the merits even after the lapse of 10 years from the execution of the provisional disposition order of this case, there is no dispute between the parties, among which, as alleged in the above, the respondent, who is a provisional disposition creditor, has completed ownership transfer registration pursuant to the sales contract as to each of the forest of this case, as alleged in the above facts. Thus, it is not possible to allow the petitioner, who is the name of the respondent, to file for the cancellation of the provisional disposition order of this case, rather than the respondent, at the request of the respondent, pursuant to the above legal principles.

B. As to this, the applicant has the right to be preserved for the decision of provisional disposition of this case. The applicant was a sales contract of Sep. 4, 1991 and Nov. 14, 1991, and thereafter, between this and respondent.

8.3. The fact that each purchase and sale contract was entered into additionally, and the fact that the original sale and sale contract was entered into on September 30, 1997 as the ground for the registration of transfer of ownership in the name of the respondent as to each forest of this case, the above transfer registration is based on a title different from the preserved right in the provisional disposition decision of this case, and therefore the above legal principle cannot be applied to this case.

In light of the circumstances where a request for a preservative measure is made according to an urgent need and there is no time to sufficiently review and determine the legal composition of the right to be preserved and the relationship with evidence, it would be unreasonable to view that the subject matter of the lawsuit and the right to be preserved in the preservative measure are somewhat different from the facts, form, etc. of the cause (see, e.g., Supreme Court Decisions 81Da8223, Mar. 9, 1982; 208Ma1984, Mar. 13, 2009).

In light of these legal principles, the respondent entered into a sales contract over four occasions with regard to each forest of this case, namely, the respondent's right to registration of transfer of ownership and the right to be preserved for the provisional disposition of this case under the name of the respondent as to each forest of this case, and the previous contract was not entered into after cancelling the previous contract or cancelling the new contract, but the previous contract was entered into with maintaining it as it is. The object of the provisional disposition of this case is not part of each forest of this case, and the cause for registration is the whole, not part of each forest of this case, and the reason for registration entered into a sales contract on September 30, 1997.

3. Conclusion

Therefore, the application for the revocation of provisional disposition of this case shall be dismissed as it is without merit. Since the decision of the court of first instance is unfair, the application for the revocation of provisional disposition of this case shall be revoked, and the decision of the court of this case which ordered the suspension of validity of the decision of the court of first instance shall be dismissed, and the decision of the court of this case which ordered the suspension of validity of the decision of the court of first instance shall be decided as per the disposition by approving it in accordance with Articles

The assistant judge of the presiding judge;

Judges Yoon Jong-dae

Judges Full-time Leave