[1] Whether a creditor may file a claim for cancellation of registration with a third party who had made a transfer registration from a debtor or debtor after seizure of the right to claim for transfer registration of ownership (negative), and in a case where the third party debtor committed a transfer registration to the debtor in disregarding the decision of seizure and again caused damage to the creditor as a result of the debtor's new transfer registration to a third party (affirmative)

[2] Whether a third-party debtor is liable to assert and prove the seizure of the real estate for which the right to claim the transfer registration of ownership has been attached by responding to a lawsuit claiming the transfer registration of ownership filed by the debtor or his/her subrogation (affirmative), and where the third-party debtor fails to comply with the above lawsuit intentionally or by negligence and thereby the judgment is declared and finalized, and where the third-party debtor and the third-party third-party's transfer registration has been made in sequence, thereby causing damage to the creditor, whether tort is established (affirmative)

[3] The amount of damages suffered by the creditor (=the amount to be distributed within the scope of seized claim) in a case where tort liability is established against the creditor due to the creditor's and the third party's successive transfer of ownership on the real estate for which the third party's right to claim the transfer of ownership

[1] If there is a seizure of the right to claim the registration of transfer of ownership, the third party obligor shall not arbitrarily perform the registration of transfer pursuant to the effect of prohibition of performance. However, such seizure is not related to the claim, but is not related to the real estate which is the object of the right to claim the registration, and it is effective only between the creditor, the debtor, and the third party obligor because there is no method of public notification on the register in addition to serving the debtor's decision on the debtor and the third party obligor, and it cannot be asserted that the prohibition of repayment cannot be asserted against the third party. Therefore, the seizure of the right to claim the registration of transfer of ownership cannot be claimed against the third party who has made the registration of transfer from the debtor or the third party because the acquisition is invalid because the third party obligor's decision of seizure is disregarding the seizure decision, and if the third party obligor has carried out the registration of transfer to a third party and the debtor has incurred damage to the creditor as a result

[2] The judgment ordering the transfer registration of ownership to a real estate seized on the right to claim the transfer registration of ownership is a judgment ordering a doctor's statement, and this becomes final and conclusive, and there is no way to block the third debtor. Thus, in case where the right to claim the transfer registration of ownership is seized, the third debtor, which has the effect of the prohibition of performance, has the obligation to prove the seizure order by asserting that the right to claim the transfer registration of ownership has been seized and submitting the decision to seize that person's service. If the third debtor intentionally or by negligence did not respond to the lawsuit claiming the transfer registration of ownership, and the creditor suffered damage by the third party due to the third party's failure to file the lawsuit claiming the transfer registration of ownership, this case constitutes a tort as if the third party debtor arbitrarily completed the registration of ownership transfer to the debtor.

[3] In case where a claim for ownership transfer registration is seized, the creditor should first complete the registration of ownership transfer in the name of the debtor with respect to the real estate in accordance with the procedure stipulated in Article 577 of the Civil Procedure Act, and then receive dividends from the auction procedure. Thus, in case where tort liability is established against the creditor due to the creditor's intentional or negligent execution of the third party's right to claim ownership transfer registration in succession with respect to the real estate on which the third party's right to claim ownership transfer registration has been seized, the amount of damages incurred thereby shall be deemed to be the amount to

[1] Article 750 of the Civil Act, Articles 557 and 577 of the Civil Procedure Act / [2] Article 750 of the Civil Act, Articles 557 and 577 of the Civil Procedure Act / [3] Articles 393, 750, and 763 of the Civil Act, Articles 557 and 577 of the Civil Procedure Act

[1] [2] Supreme Court Decision 98Da22963 delivered on June 11, 1999 (Gong199Ha, 1364) / [1] Supreme Court Decision 84Da2267 delivered on September 27, 198 (Gong198, 1313) Supreme Court Decision 88Da648 delivered on May 9, 198 (Gong1989, 895) 92Da4680 delivered on November 10, 1992 (Gong193, 2) and Supreme Court Decision 96Da11648 delivered on May 29, 198 (Gong198, 1738)

Plaintiff (Law Firm Jin Law, Attorneys Park Young-young et al., Counsel for plaintiff-appellant)

Dae Forestry Industry Co., Ltd. (Attorneys Kim Jae- Jae et al., Counsel for the defendant-appellant)

Defendant joining the Defendant (Law Firm, Kim & Lee, Attorneys Lee Jae-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na21842 delivered on June 24, 1998

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

The grounds of appeal (if the supplemental appellate brief was not timely filed, to the extent of supplement in case of supplemental appellate briefs not timely filed) by the defendant and the supplementary intervenor (hereinafter referred to as "participating") are also examined.

1. As to the establishment of tort (the grounds of appeal Nos. 1 and 2 by the defendant and the intervenor)

If there is a seizure of the right to claim the registration of transfer of ownership, the third party obligor shall be prohibited from arbitrarily performing the registration of transfer on the ground of the prohibition of performance. However, such seizure is not limited to the real estate which is the object of the right to claim the registration, but is not limited to the real estate which is the object of the right to claim the registration, and it is effective only between the creditor, the debtor, and the third party, as there is no way to announce it on the register under the current law, in addition to serving the decision on the debtor and the third party, and it cannot be asserted that the seizure of the right to claim the registration of transfer of ownership does not have the effect of prohibiting the disposal of the real estate itself which is the object of the right to claim the third party. Therefore, the third party who has made the registration of transfer from the debtor or the debtor is not entitled to claim the cancellation on the ground that the registration of acquisition is null and void, and if the third party obligor suffers any damage to the creditor who again made the registration by disregarding the attachment decision and completing the registration of transfer to the third party, it shall be liable for the tort (see, etc.

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 file an application for the registration of ownership transfer, and the third obligor has no means to block it. If the claim for the registration of ownership transfer is seized, unlike the case where a general claim is seized, the third obligor, who has the effect of prohibition of payment, has the obligation to prove the seizure of the claim for the registration of ownership transfer and to prove it by submitting the decision of seizure he/she has received. If the third obligor suffers damage by the third obligor due to the failure to comply with the above lawsuit on the registration of ownership transfer by intention or negligence, and the judgment is declared and final and conclusive as a result of the third obligor's failure to comply with the above lawsuit on the registration of ownership transfer, it shall be deemed that the third obligor constitutes a tort as if he/she had voluntarily completed the registration of ownership transfer to a third party (see Supreme Court Decision 98Da22963, Jun. 11, 199).

In the same purport, the court below held that the defendant is liable for tort against the plaintiff, an execution creditor, on the ground that, in case where the claim for the transfer registration of ownership was seized by the plaintiff, the plaintiff's claim for the transfer registration of ownership was filed against the non-party with respect to the real estate in this case, and the defendant knew or could have known that the debtor could not file a claim for the transfer registration through the lawsuit. Thus, the court below held that the defendant is liable for tort against the plaintiff, unless there are special circumstances. The defendant's failure to file a lawsuit against this, thereby making the plaintiff's claim accepted the transfer registration of ownership in the above non-party's name; the transfer registration of ownership in the name of the non-party and the transfer registration of ownership in the name of the intervenor were made in order to make the above non-party's disposal of the real estate in this case; therefore, the non-party's disposal of the real estate in this case was result in the plaintiff's disposal of

The decision of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the duty of care and causes attributable to the third party obligor, violation of the rules of evidence, or incomplete hearing in the case of seizure of the right of claim

2. Regarding the scope of damages

A. The judgment of the court below

The court below held that when the right to claim for ownership transfer registration is seized, the creditor should first complete the registration of ownership transfer of the real estate in the name of the debtor in accordance with the procedure stipulated in Article 577 of the Civil Procedure Act, and then receive dividends from the auction procedure. Thus, the plaintiff's damages arising from the defendant's tort should be the amount to be distributed to the plaintiff within the limit of the amount of seized claims. On the premise that the plaintiff's claims, including the plaintiff and the intervenor, as revealed at the time of the closing of argument in this case, were the claims of the above non-party's creditors, including the plaintiff and the intervenor, as the claims to participate in the distribution of dividends, and that the plaintiff could have been forced to enforce the execution of the real estate in this case

B. Regarding the Intervenor’s ground of appeal No. 3

In light of the records, the above fact-finding and judgment of the court below are justified, and the defendant's tort is established as soon as the plaintiff's claim for ownership transfer registration of the real estate of this case is no longer compulsory execution against the plaintiff's right to claim ownership transfer registration of this case's attached property, and it is not revealed that the right to claim ownership transfer registration of this case's real estate of this case is the only property of the above non-party or that the creditors against the above non-party are only the persons recognized by the court below. Thus, the judgment of the court below is not erroneous in the misapprehension of legal principles as to the calculation

C. As to the Intervenor’s ground of appeal No. 4

In determining the market price of the real estate of this case, since it is not only the price for the part on the right to a site but also there is no possibility that the part on the right to a site should be enforced separately, it cannot be deemed unlawful merely because the intervenor adopted the result of appraisal including the right to a site in determining the market price of the real estate of this case. Meanwhile, in calculating the amount of the plaintiff's damages by the above method, the court below rejected the intervenor's assertion that the intervenor's claim to participate in the distribution as the creditor of the above non-party is 255,300 won, which is the sum of the purchase price for the right to a purchase, the deposit for a house claim, and the intermediate payment subrogated to the defendant, and there is a separate penalty agreement. The above determination of the court below is just, and there is no violation of the rules of evidence and incomplete deliberation as

In addition, even if it is deemed that there was an agreement between the above non-party and the intervenor on the penalty for breach of contract, such amount shall not exceed 113,801,00 won, the purchase price for the right to purchase. Meanwhile, in calculating the plaintiff's expected dividend amount, the court below took a method of deducting the above amount of KRW 65,704,00,000, which should be subrogated for the above non-party, from the plaintiff's claim amount and distributing it based on it. However, the above amount of KRW 65,704,00,00 should be included in the plaintiff's claim amount, and the above amount of KRW 65,70,00,00 should be fairly borne by the creditor, and it is reasonable to include the remaining amount after the deduction from the possible dividend amount in proportion to the creditor's claim amount, and if it is calculated by such method, it would be reasonable to include the above non-party's remaining amount after the deduction from the dividend amount in the above non-party's claim amount, the amount of KRW 138,005,250.

3. On the comparative negligence ratio (Defendant's ground of appeal No. 3 and Intervenor's ground of appeal No. 5)

The fact-finding or determination of the ratio of negligence by the parties involved in tort is within 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 plaintiff's fault ratio acknowledged by the court below is within the acceptable scope and it is not unreasonable in light of the principle of equity.

The ground of appeal is without merit.

4. Therefore, the appeal is dismissed, and all 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 Lee Im-soo (Presiding Justice)