In case where a claim for registration of transfer of ownership is provisionally seized, whether a third-party obligor is liable to assert and prove the provisional seizure in response to a claim for registration of transfer of ownership filed by a debtor or a person who subrogated him/her (affirmative), and whether a third-party obligor is liable to compensate for damages arising from a tort if the third-party obligor is unable to file a claim for registration of transfer of ownership intentionally or by negligence and the creditor suffers from losses due to the declaration and confirmation of the judgment of constructive confession

If there is a provisional seizure against the right to claim for registration of transfer of ownership, the third party obligor is prohibited from arbitrarily performing his/her registration of transfer pursuant to the effect of prohibition on repayment. However, such provisional seizure is not limited to the real estate which is the object of the right to claim for registration, but is not limited to the real estate which is the object of the right to claim for registration, and it is effective only between the creditor, the debtor and the third party because there is no method of public announcement on the register other than serving the decision on the debtor and the third party debtor, and the third party cannot assert the effect of prohibition on repayment of provisional seizure. Therefore, the right to claim for registration of transfer of ownership cannot be claimed for cancellation on the ground that the acquired registration is null and void. If the third party obligor disregards the decision of provisional seizure and engages in the transfer registration again in the transfer registration to a third party and the debtor causes damage to the creditor, the judgment ordering registration of transfer transfer becomes final and conclusive and the third party obligor cannot unilaterally apply for registration of transfer, and if the third party obligor does not have the obligation to claim the ownership transfer registration again from the third party obligor, the right to claim for provisional attachment.

Article 750 of the Civil Act, Articles 557, 577, and 696 of the Civil Procedure Act

Supreme Court en banc Decision 80Da1357 delivered on September 9, 1980 (Gong1980, 1320), Supreme Court Decision 87Meu546 delivered on August 23, 198 (Gong1988, 1238), Supreme Court Decision 92Da4680 Delivered on November 10, 1992 (Gong193, 72), Supreme Court Decision 96Da11648 delivered on May 29, 198 (Gong198Ha, 1738)

(Attorney Lee Jae-ho, Counsel for defendant-appellant)

Same-sex Co., Ltd. (Attorney Choi Byung-chul, Counsel for defendant-appellant)

Seoul High Court Decision 97Na11463 delivered on April 15, 1998

The appeal shall be dismissed. The costs of appeal shall be assessed against each party.

We examine the grounds of appeal.

1. As to the Defendant’s first ground of appeal

If there is a provisional seizure against a claim for registration of transfer of ownership, the third debtor is prohibited from arbitrarily performing his/her registration of transfer on the ground of the prohibition of performance. However, such provisional seizure is not related to the real estate which is the object of the claim for registration, but it is effective only between the creditor, the debtor and the third debtor because there is no way to announce it on the register under the current law, in addition to serving a decision on the debtor and the third debtor, and it is not possible to assert the effect of prohibition of repayment of provisional seizure against the third party. Thus, the provisional seizure claim for registration of transfer of ownership cannot be claimed against the third party who has made a registration of transfer from the third debtor or the debtor, because the acquisition of the real estate itself cannot be claimed as invalidation of the cause of the registration. Thus, if the third party debtor neglected the provisional seizure decision and carried out the registration of transfer to a third party and the debtor has inflicted damage on the third party as a result of the debtor's new registration of transfer, it shall constitute a tort and shall be held liable (see Supreme Court en banc Decision 92Da4680, Nov. 10, 199698).

However, the judgment ordering the registration of ownership transfer is a judgment ordering a doctor's statement, and if this becomes final and conclusive, the obligor can unilaterally apply for the registration of ownership transfer, and the third obligor has no means to block it. Thus, in case where the claim for the registration of ownership transfer is provisionally seized, the third obligor, who has the effect of the prohibition of repayment, has the obligation to prove the fact that the claim for the registration of ownership transfer was provisionally seized by responding to the lawsuit claiming the registration of ownership transfer filed by the debtor or the subrogation of the debtor and submit the decision of provisional seizure to which he/she is served. If the third obligor fails to comply with the lawsuit claiming the above registration of ownership transfer intentionally or by negligence, and the third obligor suffers loss as a result of the decision became final and conclusive by the confession of the third obligor and the creditor's disposal to the third party, such case shall be deemed to constitute a tort as if the third obligor arbitrarily made the registration of

In addition, the circumstance that the claim for ownership transfer registration is provisionally seized falls under the grounds for defense on the part of the defendant, and as long as the existence of such provisional seizure is stated in the complaint of the claim for ownership transfer registration, this is merely a prior confession, and it can only be considered only when the defendant complies with the claim and invokes the part. Thus, as long as the defendant did not appear on the date of pleading without submitting a written response and the facts of the claim for ownership transfer registration have the effect of a constructive confession as to the requirements of the claim for ownership transfer registration asserted by the plaintiff of the case, it cannot be said that the court is a judgment in favor of the whole court, and even if the defendant

In the same purport, the court below acknowledged that the defendant, as the third debtor, had the duty of care to file a lawsuit claiming ownership transfer registration against the non-party 1, because the non-party 1's claim for ownership transfer registration had already been executed prior to the execution of the non-party 2's order for ownership transfer registration, the non-party 1's claim for ownership transfer registration had already been executed with the plaintiff's provisional attachment registration prior to the execution of the non-party 2's order for ownership transfer registration, and the non-party 1, the provisional attachment obligee, should not arbitrarily complete the ownership transfer registration on the apartment in the judgment of the court below in accordance with the non-party 1's order of prohibition of disposal of the provisional attachment, and if the plaintiff, as the provisional attachment obligee, suffered damage from the non-party 1's execution of the claim for ownership transfer registration under the provisional attachment registration of this case, he did not comply with the above non-party 1's claim for ownership transfer registration of this case. The judgment of the court below is justified in the misapprehension of legal principles or the ground for appeal.

2. Plaintiff’s ground of appeal and Defendant’s ground of appeal No. 2

The fact-finding or determination of the ratio of negligence by the parties involved in a tort constitutes the exclusive authority of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 97Da24382, Feb. 27, 1998).

Examining the reasoning of the judgment below in light of the records, the court below recognized a series of facts as stated in its judgment after compiling the evidence adopted in its judgment and judged that the plaintiff's negligence competing with the illegal act of this case is 40%. In light of the limited and unstable characteristics of the provisional seizure of the right to claim ownership transfer registration, it is sufficient to evaluate the plaintiff's negligence, and furthermore, the above principal lawsuit is sufficient to be assessed by negligence, and the above negligence ratio is not unreasonable in light of the principle of equity. Therefore, there is no error in the misapprehension of legal principles as to the duty of care of provisional seizure creditor or comparative negligence. Each of the grounds for

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

Justices Lee Jae-hee (Presiding Justice)