[1] In a case where a lawsuit is filed against a third party debtor, in the status of a claim for ownership transfer registration against the land allotted by the authorities in recompense for development outlay subject to the former Land Readjustment Act, seizure, provisional seizure or provisional disposition, whether the court may render a judgment ordering the implementation of the above procedure without condition of cancellation of provisional seizure, etc. (negative)

[2] In a case where Gap filed a lawsuit claiming the implementation of the procedure for changing the name of the third-party debtor Byung's owner on the ledger of land secured for the development of housing sites in lieu of Eul company's monetary claims against Eul corporation as preserved bonds when the right to claim the transfer of ownership against land secured for the development of development outlay has been provisionally seized or provisionally disposed of, the case holding that the court below which accepted the above claim without requiring the cancellation of provisional attachment

[1] Attachment or provisional attachment of right to claim ownership transfer does not have an effect of prohibiting disposal of real estate which is the object of the right to claim for registration, and only prevents the debtor from collecting benefits in reality to a third party debtor. Thus, the debtor can file a lawsuit seeking performance against the third party debtor, and the court cannot reject it on the ground that provisional attachment is a provisional attachment. However, the judgment ordering the registration of ownership transfer cannot be rejected on the ground that this order is a final and conclusive order, and the third party debtor can unilaterally file an application for the registration of ownership transfer, and the provisional attachment cannot be cited unless it is subject to the cancellation of provisional attachment. This is also the same in the case of provisional attachment. However, the judgment ordering the change of owner's name on the register of land allotted by the development recompense for development recompense for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for development outlay for the same purpose.

[2] In a case where Gap filed a lawsuit claiming the implementation of the procedure for the change of the name of the third-party debtor in the register of land secured for recompense of development outlay in lieu of Eul company's monetary claims against Eul corporation as preserved bonds in lieu of Eul corporation under provisional seizure or provisional disposition, the case holding that the court below erred in the misapprehension of legal principles, which admitted the above claim on the ground that the effect of the right to claim the provisional seizure of land secured for recompense of development outlay to which the former Land Readjustment and Rearrangement Projects Act (repealed by Act No. 6242 of Jan. 28, 200) applies does not extend to the procedure for the change of the name of the owner on the register of land secured for recompense

[1] Articles 223, 227, 242, 276, 291, 30, and 301 of the Civil Execution Act; Articles 54, 57(4), and 62(6) of the former Land Readjustment Projects Act (repealed by Act No. 6252 of Jan. 28, 200) / [2] Articles 223, 227, 242, 276, 291, 30, and 301 of the Civil Execution Act; Articles 54, 57(4), and 62(6) of the former Land Readjustment Projects Act (repealed by Act No. 6252 of Jan. 28, 200)

[1] Supreme Court Decision 98Da42615 delivered on February 9, 199 (Gong1999Sang, 471) Supreme Court Decision 2002Du6361 Delivered on November 28, 2003 (Gong2004Sang, 72) Supreme Court Decision 2005Da44886 Delivered on September 21, 2007 (Gong2007Ha, 1639)

Plaintiff 1 and one other (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Samsung2 District Housing Construction Project Association (Law Firm Cheongn Law, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 2007Na14039 Decided July 17, 2009

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. As to the first to fifth grounds

A. According to the records, the plaintiffs were served with the judgment of the court of first instance on August 28, 2007 and submitted the petition of appeal to the court of first instance on September 1, 2007, which is within the period of appeal. Thus, the court below did not err by misapprehending the legal principles as to the period of appeal.

B. In the court below's decision, it is clear that the plaintiffs filed a claim for payment of money against the joint defendant name construction company (hereinafter "registered construction") in the court below, and at the same time, filed a claim for the implementation of the procedure for change of name on the register of land allotted by the authorities in recompense for development outlay in lieu of the registered construction as preserved bonds, and that the claim for payment of money for the registered construction is made based on the cancellation of each sales contract entered into between the plaintiffs and the registered construction and the restoration of the original state. Therefore, the court below's decision is just and it is not erroneous in the misapprehension of the principle of pleading, contrary to the allegations in the grounds of

C. The lower court acknowledged the facts as indicated in its reasoning based on its adopted evidence, and rejected the Defendant’s assertion that, inasmuch as an agreement between the Defendant and a named construction project operator to raise the unit price of the land allotted by the authorities in recompense for development outlay at the time of the increase or change of the construction amount among the initial contracts, the Defendant again agreed to grant the registered construction operator the development recompense price calculated at KRW 444,526 per square meter, regardless of the increase or decrease of the construction amount, the Defendant did not compute the area of the land allotted by the authorities in recompense for development recompense by raising the unit price per square meter on the ground of the increase in the construction amount in this case, even if the construction amount in this case was increased, and that the registered construction did not waive all the claims against the Defendant, such as the construction amount. In light of the records, the lower court’s recognition and

D. The court below held that since the registered construction was ordered to receive the land allotted by the authorities in recompense for development outlay instead of paying the construction price and the loan claims against the defendant, it can exercise its rights after December 19, 2003 when the registered construction was waived, the extinctive prescription was interrupted by filing the lawsuit in this case before the lapse of three years thereafter. In light of the relevant legal principles and records, the above judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to the extinctive prescription. The ground of appeal on this part is without merit.

2. On the sixth ground for appeal

A. As to the Defendant’s assertion that the right to claim for ownership transfer registration of land allotted by the authorities in recompense for development outlay cannot be complied with the Plaintiff’s claim for ownership change on the Plaintiff’s registry on the ground that the right to claim for ownership transfer registration of land allotted by the authorities in recompense for development recompense for development recompense for development recompense for a provisional attachment or provisional disposition is a provisional attachment, the lower court presumed that the legal principles on the procedure for ownership transfer registration on the register of land owners cannot be applied equally to the procedure for ownership transfer registration on the registry because the legal character and effect of the register are entirely different, and the subject of provisional attachment or provisional disposition is the Defendant’s right to claim ownership transfer registration on the name of the land owner, and the subject of the claim by the Plaintiffs for ownership transfer registration on the registry of the land allotted for development recompense for development recompense for development recompense for development recompense for a different object from each other

B. However, the lower court’s determination is difficult to accept for the following reasons.

The seizure or provisional seizure of a right to claim registration of ownership does not have an effect on the object of the right to claim registration, and the debtor only prohibits the collection of payment from the third debtor in reality. Thus, the debtor can file a lawsuit seeking performance against the third debtor, and the court cannot reject it on the ground of provisional seizure. However, the judgment ordering the registration of ownership transfer cannot be dismissed on the ground that the judgment ordering the third debtor's statement is a provisional seizure. Thus, the debtor can unilaterally file an application for registration of transfer, and the third debtor does not have any way to block the third debtor from filing a request for registration of ownership transfer. Thus, the court shall not accept it unless the provisional disposition is subject to the cancellation of provisional seizure, and the same applies to the case of provisional disposition (see Supreme Court Decision 98Da4261

However, the judgment ordering the change of owner's name on the register of land allotted by the authorities in recompense for development outlay is a judgment ordering a doctor's statement, and with respect to the land allotted by the authorities in recompense for development recompense for development recompense for development recompense for which the former Land Readjustment Act (repealed by Act No. 6242 of Jan. 28, 200; hereinafter the same shall apply), if the requirements of registration on the register of land allotted by the authorities in recompense for development recompense for development recompense for development recompense for development outlay for the transfer agreement and the register of land in the register of land allotted for development recompense for development recompense for development recompense for the transfer can be acquired the exclusive right to use and gain profit from the real right and can be disposed of to a third party if the requirements of registration on the register of land allotted for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development recompense for development outlay for development recompense for development outlay for development outlay for development recompense for development outlay for development outlay for development outlay for development outlay for development purposes.

Therefore, the legal principles on the seizure or provisional seizure of the right to claim ownership transfer registration also apply to the procedure for change of the name of the owner in the register of land secured for recompense of development outlay to which the former Land Readjustment and Rearrangement Projects Act applies. Since the prohibition of repayment due to provisional seizure of the right to claim ownership transfer registration is limited to the change of the name of the owner in the register of land secured for recompense of development outlay to the land secured for recompense of development recompense of development recompense for the provisional seizure by the project implementer in the future of the transferee (see Supreme Court Decision 2005Da44886, Sept. 21, 2007).

C. On the other hand, the judgment of the court below which accepted the plaintiffs' claims without the condition of cancellation of provisional attachment, since the provisional attachment of the right to claim ownership transfer registration against the land secured for recompense of development outlay does not extend to the procedure for change of the owner's name on the register of land secured for recompense of development outlay, and it erred in the misapprehension of legal principles as to the procedure for change of ownership

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)