In case where the creditor subjected to a provisional disposition of prohibiting the transfer of possession by designating the right to claim the return of possession on the ground of the deprivation of possession as the preserved right and the creditor subjected to a provisional disposition of prohibiting the transfer of possession against the debtor as the principal lawsuit and the claim for the transfer based on ownership, which the debtor raised as the counterclaim, becomes final and conclusive by citing in all the claims in the principal lawsuit, whether change in circumstances that do not need to maintain

Article 208 of the Civil Act, Article 288 of the Civil Execution Act

ENF Co., Ltd. (Attorney Jeong-il et al., Counsel for the defendant-appellant)

Peace City Construction Co., Ltd.

Seoul High Court Order 2012Kahap510 dated January 17, 2013

The order of the court below is reversed. The order of provisional disposition rendered on April 15, 2010 by the above court shall be revoked with respect to the application case for provisional disposition against the prohibition of real estate possession transfer between the Re-Appellant and the other party in Youngcheon District Court's Young-gu Branch 2010Kahap2

The grounds of reappeal are examined.

With respect to an application for provisional disposition prohibiting the transfer of possession on the ground of the deprivation of possession's right to claim the return of possession on the ground of the right to claim the return of possession on the ground of the right to claim the return of possession cannot be denied pursuant to Article 208 of the Civil Act. However, with respect to the principal lawsuit against the debtor, the creditor who received the provisional disposition prohibiting the transfer of possession upon the application for provisional disposition, raises a counterclaim against the debtor, which is brought against the creditor, claiming a claim for the transfer based on ownership conditional in preparation for cases in which the debtor's possession is recovered upon the acceptance of the principal lawsuit, and in cases where both the principal lawsuit and the counterclaim are confirmed upon the acceptance of both the principal lawsuit and the counterclaim, the execution of the transfer of possession on the basis of the final judgment of the principal lawsuit only results in a repeated change of the state of possession, and there is no practical benefit, so the provisional disposition prohibiting the transfer of possession on the ground of

According to the reasoning of the order of the court below and the record, the other party filed a preliminary injunction against the re-appellant with regard to the building of this case as the right to request the delivery of the building based on possession right as the preserved right, for the purpose of Youngcheon District Court Young-gu Branch 2010Kahap24, and the above court rendered a provisional injunction against possession transfer of the building of this case on April 15, 2010 (hereinafter "the provisional injunction order of this case"), and the re-appellant filed a lawsuit against the other party to confirm the existence of the right of retention, and the other party filed a counterclaim against the other party to claim the delivery of the building of this case on possession right of this case on condition that the counter-claim claim of this case is accepted and the other party takes delivery of the building of this case, the Seoul Central District Court rendered a second counterclaim against the other party to claim the delivery of the building of this case on condition that the other party takes delivery of the building of this case on August 12, 2011.

In light of the above facts in light of the legal principles as seen earlier, since the counter-claim claim based on the right of possession of the other party and the re-claim claim based on the ownership of the re-appellant have been accepted and confirmed, the provisional disposition decision of this case, based on the right of possession of the other party, has changed in circumstances where it is no longer necessary to maintain it. Therefore, the order of the court below that dismissed the re-appellant's application for the revocation of the provisional disposition of this case

Therefore, the order of the court below is reversed, and it is sufficient to directly judge the party members. The decision of provisional disposition of this case is revoked. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)