[1] The scope of the validity of the provisional disposition against the transferor in subrogation of the transferee in order to preserve the subsequent purchaser of the real estate to preserve the right to claim ownership transfer registration against the transferor

[2] In a case where Eul and Byung acquired real estate from Byung through Byung and Byung conducted provisional disposition against Byung by subrogation of Eul and Byung in order to preserve their right to claim the transfer registration of ownership against Byung, whether Gap's later completed the transfer registration of ownership in Byung's future violates the validity of provisional disposition (affirmative)

[1] In cases where the subsequent purchaser of real estate receives a provisional disposition from the transferor (third debtor) by subrogation of the transferee in order to preserve the right to claim the transfer registration of ownership against the transferor and the subsequent purchaser, and completes the registration thereof, such provisional disposition is aimed at preventing a person other than the transferor from disposing of the ownership, such as transfer of the ownership, in order to preserve the subsequent purchaser's right to claim the transfer registration of ownership against his/her transferee, and it does not include the subsequent purchaser's right to claim the transfer registration of ownership against the transferor.

[2] In a case where Eul and Byung acquired the real estate from Byung through Byung, and Byung conducted provisional disposition against Byung by subrogation of Eul and Byung in order to preserve their right to claim ownership transfer registration against Byung, the provisional disposition is for preventing Gap from disposing of the ownership transfer, etc. by subrogation of Byung and Eul in sequence in order to preserve their right to claim ownership transfer registration against Byung. The preserved right is the right to claim ownership transfer registration against Eul, who is the actual provisional disposition creditor, and it does not include Eul's right to claim ownership transfer registration or right to claim ownership transfer registration of Byung as to Byung. Thus, even if the registration is made to a person who is the provisional disposition creditor, even after the provisional disposition was taken to the person who is liable for ownership transfer registration of Byung, it cannot be asserted against Jung, who is the provisional disposition creditor, because it violates the validity of the provisional disposition, and therefore, it is legitimate to cancel the registration of ownership transfer by virtue of the final judgment on the merits of the provisional disposition prohibition upon request for definition cancellation.

[1] Article 404 of the Civil Code, Article 714 of the Civil Procedure Act / [2] Article 404 of the Civil Code, Article 714 of the Civil Procedure Act

[1] Supreme Court Decision 90Da9407 decided Apr. 12, 1991 (Gong1991, 1366), Supreme Court Decision 93Da42665 decided Mar. 8, 1994 (Gong1994, 1164)

Plaintiff 1 and one other

Plaintiff Intervenor 1 and two others

Plaintiff Intervenor 4

Chungcheongbuk-do

Defendant Intervenor (Attorney Kim Sang-won et al., Counsel for the defendant-appellant)

Seoul High Court Decision 96Na47021 delivered on September 5, 1997

All appeals are dismissed. The costs of appeal regarding participation by the Plaintiffs are assessed against the Plaintiffs’ Intervenors, and the remainder are assessed against each Plaintiffs.

The grounds of appeal by the plaintiffs and the plaintiff supplementary intervenor 4 (the grounds of appeal by the above supplementary intervenor submitted after the deadline for submitting the grounds of appeal are examined together to the extent of supplement in the grounds of appeal).

In cases where the subsequent purchaser of real estate has completed the registration of provisional disposition against the transferor (third debtor) by subrogation of the transferee in order to preserve the right to claim ownership transfer registration against the transferee and the seller (third debtor), such provisional disposition is aimed at preventing a person other than the transferor from disposing of the ownership transfer, etc. in order to preserve the right to claim ownership transfer registration against the transferee, and the right to be preserved is not included in the right to claim ownership transfer registration against the transferee (see, e.g., Supreme Court Decisions 88Meu6488, May 9, 1989; 90Da9407, Apr. 12, 1991; 93Da42665, Mar. 8, 1994).

According to the reasoning of the judgment below, the court below found facts as stated in its reasoning based on the evidence, and found that the provisional disposition against the defendant against the defendant was aimed at preventing the defendant from dispositive act, such as transfer of ownership, in order to preserve the right to claim for ownership transfer registration against the non-party 1, the defendant's provisional disposition obligee, by subrogationing the above non-party 1 and the non-party 2 in order, and thus, the preserved right is not included in the above non-party 2's right to claim ownership transfer registration against the defendant, who is the actual provisional disposition obligee, and the right to claim ownership transfer registration against the non-party 1, who is the subrogation, or the right to claim ownership transfer registration against the non-party 1, who is the above non-party 1, the provisional disposition obligor after the provisional disposition was taken, even if the registration was taken against the defendant who is the provisional disposition obligee, and therefore, it cannot be asserted against the non-party 1, the provisional disposition obligee, who is the provisional disposition obligee, and therefore, it is legitimate to cancel the registration of ownership transfer registration based on the above provisional disposition.

In light of the records and the above legal principles, the above recognition and judgment of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there are no errors of law such as violation of the rules of evidence, incomplete deliberation, omission of judgment, or misapprehension of legal principles as to the scope of validity of provisional disposition prohibiting disposition, and the precedents cited in the grounds of appeal are different from those of this case, and thus are inappropriate to be invoked.

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

Justices Kim Jong-sik (Presiding Justice)