[1] The opposing power of a third party who purchased the real estate in a provisional disposition where the provisional disposition registration is cancelled in accordance with the judgment of revocation of a provisional execution declaration book

[2] The meaning of "litigation over real estate rights" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name, and whether it falls under the case where the obligee of the title truster files a lawsuit against the title trustee on behalf of the title truster (affirmative)

[3] Where a trustee disposes of real estate held in title trust to a third party, the relationship of attribution of ownership

[1] Where a provisional disposition registration is cancelled by the execution of a judgment on revocation of provisional disposition by the provisional execution declaration book, the cancellation becomes final and conclusive. Thus, the third party who purchased the real estate, the disposal of which is prohibited, may oppose the creditor of the provisional disposition without any restriction.

[2] "Litigation as to the real right to real estate" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name is sufficient if the title truster is a party to the dispute to claim that he is the person having the actual right to the pertinent real estate and to receive public confirmation, and the subject of the lawsuit is the case where the title truster, who is not the title truster, files a lawsuit against the title truster by subrogation of the creditor of the title truster.

[3] In the case of title trust of real estate, ownership is externally reverted to the trustee. Thus, when the trustee disposes of the real estate entrusted, the third acquisitor acquires the ownership of the trust property lawfully and the title trust relationship terminates, unless there is any ground such as invalidation or revocation of the disposal act.

[1] Articles 716, 719, and 720 of the Civil Procedure Act / [2] Article 11(4) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, Article 404 of the Civil Act / [3] Article 103 of the Civil Act / [title trust]

[1] Supreme Court Decision 68Da1117 delivered on September 30, 1968 (No. 16-3, 71), Supreme Court Decision 93Da60274 delivered on August 22, 1995 (Gong1995Ha, 3231) / [2] Supreme Court Decision 99Da12154 delivered on April 9, 199 (Gong199Sang, 843 delivered on January 28, 200) / [3] Supreme Court Decision 87Da424 delivered on February 9, 198 (Gong198, 497) and Supreme Court Decision 92Da18634 delivered on June 8, 1993 (Gong1934 delivered on June 19, 199)

Plaintiff (Attorney Lee Jong-soo, Counsel for plaintiff-appellant)

Defendant

Intervenor 1 and one other

Chuncheon District Court Decision 97Na2942 delivered on May 26, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Regarding ground of appeal No. 1

If a provisional disposition registration is cancelled by the execution of a judgment revoking provisional disposition, the cancellation effect becomes conclusive. Thus, the third party who purchased the real estate, the disposal of which is prohibited, becomes able to oppose the creditor of the provisional disposition without any restriction (see, e.g., Supreme Court Decisions 68Da117, Sept. 30, 1968; 93Da60274, Aug. 22, 1995).

In the same purport, as long as the registration of provisional disposition against the plaintiff as the right holder is cancelled by an application for cancellation of execution based on the declaration of provisional execution ordering the cancellation thereof, the cancellation becomes conclusive, and thus the defendant's assistant intervenor who has completed the registration of ownership transfer as to the land of this case may oppose the plaintiff as to the acquisition of ownership, and therefore, the decision of the court below that the defendant's obligation to transfer ownership to the non-party was impossible, is proper, and there is no error of law in the misapprehension

2. Regarding ground of appeal No. 2

The "litigation as to the real right to real estate under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name" is sufficient if the title truster, as a party, is a litigation to claim that he/she is the actual right holder of the relevant real estate and to be confirmed officially. This constitutes a case where the title truster, not the title truster, has filed a lawsuit against the title trustee by subrogation of the creditor of the title truster (see, e.g., Supreme Court Decisions 98Da51541, Apr. 9, 199; 9Da12154, Jan. 28, 200). The judgment of the court below to the same purport is correct, and there is no violation of law by misunderstanding legal principles as argued in the Grounds for Appeal.

3. As to the grounds of appeal Nos. 3 and 4

In the case of the title trust of real estate, ownership is externally reverted to the trustee. Thus, if the trustee disposes of the real estate entrusted, the third acquisitor legally acquires the ownership of the trust property and terminates the title trust relationship unless there is any ground such as invalidation or revocation of the disposal act (see, e.g., Supreme Court Decision 96Da38896, Oct. 10, 197). According to the records, the records, it is clear that the non-party sold the land of this case under title trust to the supplementary intervenor on behalf of the defendant on behalf of the defendant before the plaintiff institutes the lawsuit of this case, and there is no evidence to deem any grounds for invalidation or revocation. Thus, even if the defendant completed the title transfer registration under the name of the supplementary intervenor 2 after the lawsuit of this case by subrogation of the non-party, the third acquisitor 2, who was the third party, acquired the ownership of the land of this case, and the obligation of the defendant to transfer ownership to the non-party, was impossible to perform.

Therefore, we cannot accept the plaintiff's assertion that the registration of ownership transfer in the name of the assistant intervenor 2 is null and void or the defendant's obligation to transfer ownership to the non-party is not in an impossible condition, on the ground of Article 405 (2) of the Civil Code which cannot be asserted against the third party. The court below's decision to the same purport is not erroneous in the misapprehension of legal principles that affected the conclusion

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

Justices Cho Cho-Un (Presiding Justice)