A. Nature of the order of provisional disposition

(b) Effect of a judgment against the holder of a provisional registration under Article 144 (2) of the Registration of Real Estate Act;

A. The provisional disposition order is a judgment that can oppose the provisional registration without the consent of the person liable for provisional registration, and merely is a requirement for the provisional registration procedure, and is different from the provisional disposition with respect to any disputed real estate, the object of which is to preserve the judgment pursuant to Article 755 of the Civil Procedure

B. An interested party in the registration who is dissatisfied with the provisional registration when the provisional registration was made, can only take the procedure of cancelling the provisional registration upon obtaining a final and conclusive judgment in favor of the title holder in a lawsuit demanding the imposition of the provisional registration by asserting the facts on the merits, and there is no objection under the Civil Procedure Act, which does not have any objection under the provisions of the Civil Procedure Act.

Article 755 of the Civil Procedure Act, Articles 32 and 144 of the Registration of Real Estate Act

[Defendant-Appellee-Appellant] Jindon Jin-do Attorney Kang Jin-hun

An administrator of Kim Jong-sik's legal representative, an attorney Lee Jong-ok et al., Counsel for plaintiff-appellant

Seoul District Court of the first instance, the Seoul High Court of the second instance, 55 civil defense25 decided July 5, 1955

The final appeal is dismissed.

The costs of appeal are assessed against the defendant.

The first ground for appeal by the defendant alleged that the provisional registration of this case is not a lawsuit claiming cancellation of the provisional disposition, unless the defendant revokes the provisional disposition order by the provisional disposition order as of August 2, 4279. However, according to Article 144 of the Registration of Real Estate Act, when the cancellation of provisional registration can be applied from the title holder of the provisional registration or when the consent of the title holder of the provisional registration or a certified copy of the judgment that can be asserted against the difference is attached to the application, it is not doubtful that the person entitled to the provisional registration and the person liable for registration can jointly apply for cancellation of the provisional registration, and that the plaintiff's defense cannot be asserted because the cancellation of the provisional registration is not a matter entrusted by the competent court, but because the provisional registration of this case cannot be revoked by the decision of provisional disposition of Seoul District Court as of August 2, 4279, because it means that the provisional registration of this case is a registration stated by the provisional disposition order of Seoul District Court as of August 2, 200.

However, according to Articles 25, 32, and 33 of the Registration of Real Estate Act, if the principle that both parties apply for provisional registration is to attach a written consent of the person liable for provisional registration when it is different from that of the person liable for provisional registration, the plaintiff may request the competent court to cancel the provisional registration with the original copy of the order of provisional disposition which was issued upon the request of the person liable for provisional registration when it is impossible to obtain the consent of the person liable for provisional registration. According to the purport of Article 75 of the Civil Procedure Act, it is evident that the provisional disposition order of provisional registration is a judgment which can oppose the provisional registration without the consent of the person liable for provisional registration, and it does not require any special purpose or existence such that it is unnecessary to cancel the provisional registration without the consent of the person liable for provisional registration. However, according to the purport of Article 75 of the Civil Procedure Act, it is clear that the court below's decision to cancel the provisional registration without the consent of the court's decision to cancel the provisional registration without the consent of the person concerned.

The ground of appeal No. 2 is that the defendant, as the plaintiff, filed a claim for ownership transfer registration of real estate with the Seoul District Court on August 1, 4279 against the plaintiff as the plaintiff, and the lawsuit is still pending in the Seoul District Court, but the court below did not proceed due to the discovery of the records of proceedings. In this case, the plaintiff's assertion is without any interest in the lawsuit to seek cancellation of provisional registration only in the form of a suit without the solution intending to promote the main text of the lawsuit. This is because even if this provisional registration is to be cancelled, it is possible to make provisional disposition identical with this of this case on the ground of the previous case on the following day, because it is our legal form, it is not necessary to repeat provisional registration without the intention to cancel provisional registration, and because there is no interest in this case, it is not clear that the court below's rejection of the plaintiff's assertion is a violation of the rules of evidence to acknowledge the same conclusion even in the case where only the provisional disposition is cancelled, and it is not clear that there is no evidence to acknowledge the defendant's objection to the purchase of this lawsuit.

However, according to the original judgment, the court below held that the lawsuit on the merits of the lawsuit can be combined with the fact that the defendant voluntarily withdrawn the lawsuit based on evidence.

For the above reasons, the appeal of this case is deemed to be dismissed, and it is so decided as per Disposition by the application of Articles 89 and 95 of the Civil Procedure Act to the burden of litigation costs.

Justices Kim Jong-il (Presiding Justice)