Cho Jae-young (Law Firm 002, Attorney Gu Won-won, Counsel for defendant-appellant)

Hyundai Industrial Development Co., Ltd. (Attorneys Kang Jae-dae et al., Counsel for the defendant-appellant)

August 20, 2004

Seoul Eastern District Court Decision 2003Kahap2419 Delivered on January 26, 2004

1. The petitioner's appeal is dismissed;

2. Costs of appeal shall be borne by the applicant.

The judgment of the first instance court shall be revoked. With respect to the case of a provisional injunction against disposal of real estate in Seoul Eastern District Court 9khap890, Seoul Eastern District Court 99Kahap890 among the respondent and the Korea Land Trust Co., Ltd., the part concerning each real estate listed in the separate sheet No. 3 shall be revoked on April 21, 199.

1. Basic facts

[Ground for Recognition: Facts without dispute, significant facts in this court, evidence Nos. 2-1 through 3, evidence Nos. 3-1 through 5, evidence Nos. 4 and the purport of the whole pleadings]

A. The respondent had a claim for construction cost as to the execution of each real estate listed in the separate sheet No. 3 (the real estate listed in the separate sheet No. 3 includes all the real estate listed in the separate sheet No. 1 and No. 2; hereinafter the same shall apply) against the Sejong High Court Co., Ltd. (hereinafter referred to as the “Seoul High Court”), but the Sejong High Court completed the registration of transfer of ownership as to each real estate listed in the separate sheet No. 3 attached hereto on March 31, 1999 as the receipt of the Seoul East East District Court registration Office No. 17123 on March 31, 1999 as to each real estate listed in the separate sheet No. 3 attached hereto (hereinafter referred to as the “Korea Land Trust”).

B. Accordingly, the respondent filed an application for provisional injunction against disposal of each real estate listed in the separate sheet No. 3, Seoul Eastern District Court 9Kahap890, by asserting that he/she has the right to claim the cancellation of ownership transfer registration on the land trust in Korea, which caused the cancellation of the ownership transfer registration on the ground that it constitutes a fraudulent act detrimental to the respondent, who is the creditor of the tax base craft, and the respondent filed an application for provisional injunction against disposal on the above real estate on April 21, 1999. On the same day, the above court accepted the above application and made a provisional injunction order against disposal on the above real estate on April 21, 199 (hereinafter “the provisional injunction order of this case”).

C. On the other hand, on March 19, 1994, the applicant’s father (hereinafter “the deceased”) entered into an exchange contract with the third party to exchange each real estate listed in the attached Tables 1 and 2, where the applicant’s father was newly constructed with a 536.05 square meters wide and a 146.05 square meter wide and 146.05 square meters wide and the 5536.1 square meters wide and its ground cement block store owned by the deceased.

D. However, when the deceased died on December 23, 1998. 2, 1998. 2, the deceased's wife and her children, excluding the applicant, scamb and scambling, scambling, and scambling that the deceased's claim for the ownership transfer registration of each real estate listed in Schedule 1, Schedule 1 and 2, listed in Schedule 1, Table 3 and paragraph 4, Section 9, Section 9, Section 2, listed in Schedule 9, Section 9, Section 2, listed in Schedule 9, Section 9, Section 2, listed in Schedule 9, Section 9, Section 2, listed in Schedule 9, Section 9, Section 2, listed in Schedule 2, listed in Schedule 9, Section 9, Section 2, listed in Schedule 9, Section 9, listed in Schedule 2, listed in Schedule 9, and Section 9, Section 3, listed in Schedule 1, 96, listed in Annex 2, respectively.

E. After that, according to the above judgment, the registration of cancellation of each ownership transfer registration under the name of the land trust in Korea was completed on June 14, 2003 by the Gangseo-gu Seoul East District Court (Seoul, Dong District Court No. 4157, Jun. 14, 2003) with respect to each real estate listed in the separate list No. 1, and the registration of cancellation of each ownership transfer under the name of the land trust in Korea on September 6, 1999 was completed on the ground that the trust was terminated on September 6, 199.

F. Furthermore, with respect to the real estate listed in paragraph (1) of the attached list No. 1 and the real estate listed in paragraph (2) of the same list, the registration of ownership transfer was made in the name of each applicant on the ground of sale on July 21, 2003 with respect to each real estate listed in paragraphs (3) and (4) of the same list, on the ground of donation on August 5, 2003, and on the real estate listed in paragraph (5) of the same list, on October 8, 2003, on the ground of sale on September 15, 2003.

2. Determination on this safety defense

With respect to the claimant's assertion that the applicant is the successor to the Korea Land Trust, which is the debtor of the provisional disposition decision of this case, and sought the revocation of the part concerning each real estate listed in the separate sheet No. 1 among the provisional disposition decision of this case on the ground of change of circumstances, the respondent may file an application for provisional disposition due to change of circumstances only with the provisional disposition debtor, his general successor or specific successor, but the applicant does not fall under

On the other hand, an application for revocation of provisional disposition on the ground of change of the situation can only be made by a person who is in the position of the party such as the obligor of the provisional disposition, his general successor or specific successor, etc. In relation to the provisional disposition decision of this case, the applicant is not transferred the ownership of 1/2 of the real estate in the separate list No. 1, 3 through 5 of the provisional disposition decision of this case and the real estate in the separate list No. 2 of the same list No. 2 of the provisional disposition decision of this case from the Korea Land Trust, which is the provisional debtor. As seen above, after the transfer registration of ownership in the name of the Korea Land Trust as to each of the above real estate is cancelled, the applicant is transferred in order from the Sejong Land Trust, in order, after the transfer registration of ownership in the name of the provisional disposition of this case was cancelled (excluding whether the above transfer registration of ownership and the transfer registration are legitimate). Thus, the applicant cannot be viewed as a separate claimant's right to seek cancellation of the provisional disposition of this case on the ground of change of circumstance.

3. Conclusion

Therefore, the petitioner's petition of this case is dismissed without any further review, and the judgment of the court of first instance is just, so the petitioner's appeal is dismissed. It is so decided as per Disposition.

[Attachment List omitted]

Judges Min Il-young (Presiding Justice)