[1] In a case where the entry registration of provisional seizure of real estate is cancelled by a court commission, whether the creditor of provisional seizure may file a lawsuit against the owner at the time of cancellation of provisional seizure for the restoration registration of provisional seizure entry registration (negative), and whether a lawsuit against the owner at the time of cancellation for acceptance can be brought (affirmative)

[2] The purport of Articles 40(2) and 62 of the Composition Act, and the scope of compulsory execution, provisional seizure and provisional disposition which are suspended and effective in composition procedures

[1] The entry registration of provisional seizure of real estate cannot be made directly by the creditor or debtor, and it is executed by the commission of the court. If the entry registration of provisional seizure for which the party is unable to make a request is cancelled by the commission of the court, the registration of recovery should also be made by the commission of the court. In this case, there is no benefit to enforce the procedure of recovery registration of entry of provisional seizure for which the creditor of provisional seizure is cancelled. However, if the person who has completed the registration of ownership transfer of the real estate at the time of the cancellation of the provisional seizure registration for which the registration of entry of provisional seizure was made is a third party having an interest in the registration when the court entrusts the restoration of the registration of entry of provisional seizure for which the provisional seizure was cancelled, the creditor of the provisional seizure can file a lawsuit against the person demanding the acceptance of

[2] Articles 40(2) and 62 of the Composition Act provide that compulsory execution, provisional seizure, and provisional disposition against the debtor's property with respect to composition credit prior to the commencement of composition when the commencement of composition is decided, shall be suspended during composition procedures, and when the approval of composition becomes final and conclusive, compulsory execution, provisional seizure, and provisional disposition suspended by the decision of the commencement of composition shall lose its validity. The purport of the provision is that if the composition creditor permits individual execution of the composition debtor's property during composition procedures, it is difficult to establish composition due to the bankruptcy and decrease of the composition debtor's property, and it would impede the fairness among creditors. Thus, in order to prevent this, compulsory execution, provisional seizure, and provisional disposition should be limited to compulsory execution, which is suspended, effective, and provisional disposition, which shall be limited to the composition debtor's property at the time of the commencement of composition.

[1] Articles 27 and 75 of the Registration of Real Estate Act, Article 226 (Institution of Lawsuit) and Article 710 of the Civil Procedure Act / [2] Articles 40 (2) and 62 of the Composition Act

[1] Supreme Court Decision 82Da1168 delivered on March 8, 1983 (Gong1983, 652), Supreme Court Decision 95Da6878 delivered on May 26, 1995 (Gong1995Ha, 2260), Supreme Court Decision 94Da27205 delivered on May 31, 1996 (Gong196Ha, 2007), Supreme Court Decision 95Da13951 delivered on February 14, 1997 (Gong197Sang, 734 delivered on March 24, 200)

Dongyang Industry Co., Ltd. (Attorney Lee Yong-soo et al., Counsel for the defendant-appellant)

anti-U.S. and one other (Attorney Park Young-ok, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na40901 delivered on November 21, 2001

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

1. The entry registration of provisional seizure of real estate cannot be made directly by the creditor or obligor, and it is executed by the commission of the court. If the entry registration of provisional seizure for which the party is unable to make a request is cancelled by the commission of the court, the registration of recovery should also be made by the commission of the court. In this case, there is no benefit to enforce the procedure of recovery registration of entry of provisional seizure for which the creditor of provisional seizure is cancelled. However, if the person who has completed the registration of ownership transfer of the real estate at the time of the cancellation of the registration of entry of provisional seizure for which the court entrusts the restoration of the registration of entry of provisional seizure for which the third party has a interest in the registration, the creditor of provisional seizure can file a lawsuit against the person demanding the acceptance of the procedure of recovery of the entry of provisional seizure for which the court entrusts the person (see Supreme Court Decision 95Da13951, Feb. 14, 1997).

Therefore, it cannot be said that the court of execution filed a claim for acceptance of the procedure for restoring the provisional attachment registration at the request of the court without going through prior procedures such as filing a request for the registration of restoration or filing an objection to the execution.

The judgment of the court below to the same purport is justified.

2. Articles 40(2) and 62 of the Composition Act provide that compulsory execution, provisional seizure and provisional disposition against the debtor's property with respect to composition credit prior to the commencement of composition when the commencement of composition is decided, shall be suspended in the composition procedure, and if the approval of composition becomes final and conclusive, compulsory execution, provisional seizure and provisional disposition suspended by the decision of the commencement of composition shall lose its validity. The purport of this provision is that if the composition creditor permits individual execution of the composition debtor's property during the composition procedure, it is difficult to establish composition due to the bankruptcy and decrease of the composition debtor's property, and the fairness between creditors is impeded. Thus, compulsory execution, provisional seizure and provisional disposition procedure should be deemed retroactively invalidated when the decision of approval of composition becomes final and conclusive, and it shall be deemed that compulsory execution, provisional seizure and provisional disposition which are suspended, effective in composition procedure shall be limited to compulsory execution against the composition debtor's property at the time of the commencement of composition.

However, since the real estate of this case was already acquired the ownership of the defendant company after provisional seizure had already been executed prior to the decision to commence the composition, it cannot be an obstacle to the establishment of composition and the smooth progress of composition procedures due to provisional seizure on the real estate of this case since it was not the debtor company's property at the time of the decision to commence the composition of the non-party company. Thus, the provisional seizure of this case is not included in the provisional seizure suspended by the decision to commence the composition, but it cannot be deemed retroactively invalidated

Therefore, the registration of cancellation of the provisional attachment registration of this case shall be null and void without any legal grounds, and the plaintiff still holds the right as a provisional attachment owner, notwithstanding the above cancellation registration. Meanwhile, the defendants constitute a third party interested in the registration of cancellation of the provisional attachment registration of this case, which was cancelled as a person who received the ownership transfer registration or the establishment registration of the neighboring mortgage registration of this case at the time of cancellation of the provisional attachment registration of this case, and thus, the defendants are obligated to express their intent to accept the above restoration registration to the plaintiff.

We also affirm the judgment of the court below to the same purport.

All of the grounds of appeal cannot be accepted.

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

Justices Song Jin-hun (Presiding Justice)