Where a provisional seizure is executed on the land to be expropriated, the effectiveness of the provisional seizure following the expropriation of land, and whether the creditor of the provisional seizure against the land prior to the expropriation may claim the grounds that the creditor of the provisional seizure against the land prior to the expropriation could have asserted on the land prior to the expropriation even if the provisional seizure is again made on the claim prior

According to Article 67 (1) of the former Land Expropriation Act (repealed by Act No. 6656 of Feb. 4, 2002, Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor), public project operators shall acquire ownership on the date of expropriation and terminate other rights to such land. Thus, even if provisional seizure is executed on the land to be expropriated, the provisional seizure on the land becomes null and void as the public project operators have acquired ownership on the original date through the expropriation of land, and in this case, the provisional seizure on the land cannot be deemed null and void as it is naturally transferred the claim for the compensation, and thus, even if the provisional seizure on the land before expropriation has again been made a provisional seizure on the claim for compensation after the provisional seizure on the land before expropriation, it shall be deemed that it cannot be asserted even in the distribution procedure for the compensation claim.

Article 67 (1) of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Act No. 6656 of February 4, 2002) (see Article 45 of the current Act on the Acquisition of Land,

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

The Korea Technology Finance Corporation (Attorney Park Jong-dae, Counsel for defendant)

Korean Lease Credit Co., Ltd. (Attorney Kim Gyeong-chul, Counsel for the defendant-appellant)

Seoul District Court Decision 2003Na24320 delivered on October 15, 2003

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

1. The court below accepted the judgment of the court of first instance. After the provisional attachment was executed on November 24, 1994 with respect to the land of this case which was owned by the plaintiff on the provisional attachment of November 24, 1994, the ownership of the land of this case was transferred to the non-party on May 6, 1995, and the establishment registration of the defendant's neighboring mortgage was completed on August 7, 1996, but on September 29, 198, the above land was expropriated at the non-party's government and converted to the right to claim for expropriation, and all other rights of the plaintiff's above provisional attachment such as the provisional attachment were extinguished. The non-party who acquired the provisional attachment cannot be viewed as a complete owner, who is still the third party's creditor of provisional attachment, and therefore, the land owner at the time of provisional attachment cannot be viewed as the non-party's right to claim the provisional attachment of this case within the scope of the non-party's right to claim the provisional attachment of this case's claim for provisional attachment.

2. However, we cannot agree with the above judgment of the court below.

According to Article 67 (1) of the former Land Expropriation Act (repealed by Act No. 6656 of Feb. 4, 2002, Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor), public project operators acquire ownership on the date of expropriation of the land and terminate other rights to the land, and even if provisional attachment is executed on the land to be expropriated, the provisional attachment of the land becomes null and void as the public project operators have acquired ownership on the date of original acquisition of the land through the expropriation of the land, and in this case, the provisional attachment of the land cannot be deemed null and void as it is naturally transferred the right to the compensation claim (see Supreme Court Decision 98Da62961, Jul. 4, 200). Therefore, even if the provisional attachment creditor of the land prior to the expropriation has again provisionally seized the compensation claim, it shall be deemed that the person who acquired a mortgage after the provisional attachment of the land prior to the expropriation but seized the land under subrogation for the above compensation claim, and it shall not be asserted in the distribution procedure for the compensation claim.

In light of the facts acknowledged by the court below, the provisional attachment of the first real estate becomes absolutely null and void due to the original acquisition of the ownership of the land by the business operator due to the expropriation of the land in this case, and unless otherwise specifically provided by law, the provisional attachment of the land in this case is naturally transferred to the claim for the compensation for expropriation, and its effect is null and void, or there is no legal ground to view that the provisional attachment of the land in this case still has the effect of prohibiting the disposal of the provisional attachment of the land against the claim for compensation for expropriation, and therefore, the plaintiff who newly attached the above compensation claim as provisional attachment cannot receive dividends prior to the defendant who exercised the right of subrogation

Nevertheless, the court below held that the above claim for expropriation should be preferentially distributed to the plaintiff who is a creditor of provisional seizure of real estate within the scope of the claim amount at the time of the decision of provisional seizure of the above real estate, and that the defendant who is a mortgagee of provisional seizure may be apportioned to the lower court only. In this regard, there is no error of law by misunderstanding the legal principles on the effect of expropriation and the effect of provisional seizure, which affected

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)