[1] Where ownership of the object of provisional seizure is transferred to a third party after the execution of provisional seizure, whether a creditor against the third party may participate in the distribution of the amount within the scope that the prohibition of disposal of provisional seizure takes effect among the proceeds from the sale of the object of provisional seizure (negative)

[2] Where ownership of the object of provisional seizure is transferred to a third party after the execution of provisional seizure, whether the creditor of provisional seizure may receive a dividend from the proceeds of sale of the object of provisional seizure that exceeds the claim amount at the time of the decision of provisional seizure

[1] Since a disposal act of the debtor of provisional seizure after the execution of provisional seizure pursuant to the effect of prohibition of disposal of provisional seizure is effective in relation to the creditor of provisional seizure, in cases where ownership of the object of provisional seizure after the execution of provisional seizure has been transferred to a third party, the creditor of provisional seizure may obtain a title of debt and execute the compulsory execution before the provisional seizure is executed by designating the debtor of provisional seizure who is not the third party as the execution debtor. In such cases, such compulsory execution is a compulsory execution procedure against the debtor of provisional seizure within the limit of the claim amount at the time of the decision of provisional seizure which has an objective effect of prohibition of disposal of provisional seizure, and therefore the creditor of the third party against the third party shall not participate in the distribution of the amount within the limit of the claim amount

[2] Where ownership of the object of provisional seizure has been transferred to a third party after the execution of provisional seizure, the creditor of provisional seizure may carry out the compulsory execution before the provisional seizure is the execution obligor, by obtaining a title of debt, with the debtor who is not the third party acquisitor as the execution obligor. However, such compulsory execution is a compulsory execution procedure for the debtor of provisional seizure, who is the execution obligor, only within the limit of the claim amount at the time of the decision of provisional seizure which is the objective scope which is the effect of prohibition of disposal of provisional seizure. The claim amount at the time of the decision of provisional seizure stated only the principal amount of the claim, and even if the creditor of provisional seizure has interest and litigation expenses in addition to the principal claim against the debtor of provisional seizure, it does not affect the prohibition of disposal of provisional seizure as to the interest and litigation expenses claim exceeding the claim amount at the time of the decision of provisional seizure.

[1] Article 696 of the Civil Procedure Act / [2] Article 696 of the Civil Procedure Act

[1] Supreme Court Decision 97Da8410 delivered on August 26, 1997

Plaintiff

Defendant

Changwon District Court Decision 98Na3959 delivered on July 24, 1998

All appeals by the plaintiff and the defendant are dismissed. The costs of appeal are assessed against each party.

1. We examine the defendant's grounds of appeal.

A. As to the second ground for appeal

The disposal act of the debtor of provisional seizure after the execution of provisional seizure pursuant to the effect of prohibition of disposal of provisional seizure is effective in relation to the creditor of provisional seizure, and where the ownership of the object of provisional seizure after the execution of provisional seizure has been transferred to a third party, the creditor of provisional seizure may obtain in the name of his/her debt and execute the compulsory execution before the provisional seizure is executed by designating the debtor of provisional seizure who is not the third party as the execution debtor. In such cases, such compulsory execution is a compulsory execution procedure against the debtor of provisional seizure, who is the execution debtor of provisional seizure, within the limit of the claim amount at the time of decision of provisional seizure which has the effect of prohibition of disposal of provisional seizure, the creditor of the third party against the third party shall not participate in the distribution (see Supreme Court Decision 97Da8410, Aug. 26, 1997).

According to the reasoning of the judgment below, the court below determined that the defendant was a creditor of a third party purchaser who acquired the real estate of this case after the execution of provisional seizure with the plaintiff as a provisional seizure creditor, and that the defendant may receive dividends from the actual dividends to the extent that there is a balance remaining after the plaintiff as a creditor of provisional seizure has been paid the claim amount at the time of the application for compulsory auction within the limit of the claim amount at the time of the decision of provisional seizure. The judgment of the court below is just in accordance with the above legal principles, and there is no error of law in the misapprehension of legal principles

B. Ground of appeal No. 1

The defendant asserted as the grounds of appeal that the plaintiff did not have any claim against the non-party, who is the provisional attachment obligor, and was rendered a favorable judgment against the non-party by means of service by public notice. However, the defendant asserts that such assertion was not made until the closing of argument in the court of final appeal until the closing of argument in the court of final appeal, and such assertion was first raised in the court of final appeal, and therefore,

2. We examine the Plaintiff’s grounds of appeal.

As seen earlier, where the ownership of the object of provisional seizure has been transferred to a third party after the execution of provisional seizure, the creditor of provisional seizure may enforce the compulsory execution by obtaining the name of his/her debt and by making the debtor of provisional seizure who is not the third party as the debtor of provisional seizure before the provisional seizure. However, such compulsory execution is a compulsory execution procedure for the debtor of provisional seizure, who is the execution debtor, only within the limit of the claim amount at the time of the decision of provisional seizure which is the objective scope which is the prohibition of disposal of provisional seizure, and the claim amount at the time of the decision of provisional seizure stated only the principal amount of the claim, and even if the creditor of provisional seizure has interest and lawsuit expenses in addition to the principal claim against the debtor of provisional seizure, it does not affect the prohibition of disposal of provisional seizure as to the interest and lawsuit expenses claim exceeding the claim amount at the time of the decision of provisional seizure. Therefore

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles or incomplete deliberation as to the scope of the prohibition of disposal of provisional seizure. There is no reason to discuss.

3. Therefore, all appeals by the Plaintiff and the Defendant are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)