The effect of the decision of provisional disposition where the other party was alive at the time of the application for provisional disposition but died immediately before the decision of provisional disposition

Even if the other party died immediately before the provisional disposition decision, if the other party remains alive at the time of the application for provisional disposition, and if the court summonss both parties and promptly orders the preservation of the other party at the request of the applicant without going through examination or oral proceedings, it cannot be said that the provisional disposition decision is void automatically in that the procedure of preservation is characterized by urgency and secrecy.

Article 714 of the Civil Procedure Act

Supreme Court Decision 75Da809 Delivered on March 23, 1976 (Gong309 delivered on March 23, 1976)

Ethical Notes

The class of class;

Gwangju District Court Decision 92Ka3626 delivered on May 29, 1992

The respondent's appeal is dismissed.

Expenses for appeal shall be borne by the respondent.

In the case of provisional disposition prohibiting real estate disposal between the respondent and non-applicant, and the non-applicant, Kim Young-ran, Kim Jae-ho, Kim Jae-ho, and Kim Jae-Nam, the provisional disposition order issued by the above court on August 21, 1991 with respect to the land listed in the separate sheet shall be revoked.

Litigation costs shall be assessed against the respondent.

The original judgment shall be revoked.

The petitioner's application is dismissed.

Litigation costs shall be borne by the applicant in both the first and second instances.

In full view of the purport of the entry and pleading of No. 1, No. 4, No. 1, and No. 2, and No. 99 of the above case by filing a dispute over the establishment of the deceased, the Respondent died on the ground that he purchased the land listed in the separate sheet (hereinafter referred to as the "land of this case") from Non-Application No. 1, No. 96 of the above case on August 19, 191, the Respondent No. 96 of the above case's provisional disposition No. 1, No. 91, No. 97 of the above case's provisional disposition No. 9 of the deceased, No. 96 of the above case's provisional disposition No. 99 of the court against the applicant's heir No. 91 of the above case's title, the Respondent's provisional disposition No. 98 of the above case's provisional disposition No. 97 of the deceased's title, the above court accepted the above provisional disposition No. 981 of the deceased's title No. 1981 of the above case's.

According to the above facts, due to the confirmation of the lawsuit on the merits against the above provisional disposition case by the applicant, the existence of the right to claim ownership transfer registration of the land of this case against the applicant, which is the right to be preserved in the provisional disposition case, has been confirmed, and as long as the applicant has completed ownership transfer registration of the land of this case in the name of the same person, it shall be reasonable to deem that the date of receipt of the registration of the provisional disposition as to the provisional disposition order of 91Ka8099, which was received by the applicant, has ceased to exist as the respondent's necessity for preservation or preservation of the right to be preserved in the provisional disposition order of 91Ka8099, which was followed by the fact that the date of receipt of the registration has been

As to this, the respondent asserted that the land of this case was owned by the Korea Land Development Corporation other than the original application, and the said Corporation did not resell the land of this case to another person, while selling it to the above Kim Jong-hwan, and the special agreement for repurchase was entered. The above Kim Jong-sik concluded to repurchase when it was sold to the applicant and the respondent, and that the above Corporation exercised the right of repurchase on the land of this case to the heir of the above Kim Jong-sik pursuant to the initial agreement, and accordingly, the above heir's transfer of ownership in the name of the above heir and the transfer of ownership in the name of the applicant based on it were null and void of each cause. Thus, the applicant's objection of this case on the premise that the owner of the land of this case was the owner of the land of this case is unreasonable. Thus, in full view of the above No. 1's statement and the purport of pleading's pleading, each of the above provisional disposition registration of this case was accepted on Apr. 258, 191, and each of the above provisional disposition registration of this case was accepted 29131.

In other words, the respondent's decision of provisional disposition No. 91Ka8099 against the plaintiff, which was received by the plaintiff against the plaintiff non-applicant Kim Chang-sik, is null and void, and only the above court's decision of provisional disposition No. 91Ka8572 issued by the respondent is valid. If the respondent's right to preserve the land of this case is confirmed in the above provisional disposition's existence and the registration of ownership transfer is made in the name of the respondent, the above provisional disposition's registration of ownership transfer should be cancelled by the validity of the above provisional disposition. Thus, the respondent's claim for provisional disposition on the premise that the plaintiff is the owner of the land of this case is improper, so the above defendant's claim for provisional disposition on August 6, 191, 191, which was before the above court's decision No. 918099, which was the date of the above court's decision No. 93000, Aug. 6, 191, which was the date of the above provisional disposition No. 1997.

Therefore, in advance of the provisional injunction against disposal of real estate in the above court No. 91k8572 between the respondent and the non-applicant non-applicant, Kim Young-ran, Kim Jae-ho, and Kim Jae-Nam, the above court's motion of this case shall be accepted as reasonable, and the above court's motion for revocation of provisional injunction against disposal against the land in this case shall be justified. As such, the original judgment is just, and the respondent's appeal is groundless, and the costs of appeal shall be dismissed and the costs of appeal shall be borne by the respondent who has lost.

Judges Kim Sang-sik (Presiding Judge)