Effect of provisional disposition prohibiting disposition

Even if the ownership transfer registration has been made after the entry of the provisional disposition prohibition registration, if the creditor of the provisional disposition becomes final and conclusive in the lawsuit on the merits, he may invalidate the result of the act of disposal in conflict with the decision of the provisional disposition, and may not waive the right under substantive law

Article 714 of the Civil Procedure Act

67Da1215 decided Sep. 5, 1967 (Supreme Court Decision 2043; Supreme Court Decision 714(24)1095 of the Civil Procedure Act)

Plaintiff

Defendant

Seoul Central District Court (70 Ghana16495) in the first instance trial

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

(1) Revocation of the original judgment shall be revoked.

(2) On July 2, 1968, the defendant implemented the procedure for cancelling the registration of transfer of ownership on the ground of the compromise between the transfer of ownership by the sale and the transfer of ownership, which was made by the Seoul Western District Court on June 17, 1968 on the part of the plaintiff on July 2, 1968.

(3) All the costs of lawsuit are assessed against the defendant in the first and second trials.

1. The registration of establishment of a neighboring mortgage with the amount of 1,350,000 won, which was originally owned by the plaintiff on June 16, 1967 by the method of securing the plaintiff's debt of 1,350,000 won against the non-party 1 as a collateral security (hereinafter referred to as the "real estate in this case"). However, on March 13, 1967, the registration of establishment of a neighboring mortgage with the amount of 1,40,000 won due to a contract to establish a collateral security and the registration of ownership transfer for the reasons of the sale in the front of the same registry office on June 15, 1967, was completed on July 2, 1968 by the receipt of the same registry office on July 15, 1968, which was received by the non-party 1 and the defendant on June 17, 1968.

2. The plaintiff first claims the cancellation registration of the ownership transfer registration in the name of the defendant, and first claims that, when the plaintiff made the registration of the ownership transfer with Nonparty 1 as a collateral holder, the plaintiff delivered documents required for the registration of ownership transfer and agreed that if the creditor acquires ownership or disposes of ownership to another person due to the expiration of the payment period for the above obligation, the agreement should be set at an amount equivalent to the market price by agreement with the plaintiff. The plaintiff asserted that the registration of the non-party 1, who made the above agreement and made a use of the documents without permission, is invalid of the cause, and the registration of the defendant'

In light of the above facts, Gap evidence Nos. 2, 4-3, 1-2, and Eul evidence Nos. 1 and 2 (judgments) without dispute over the plaintiff's establishment, the plaintiff cannot request the plaintiff to return the above real estate after the lapse of 7 percent of the total amount of 1,350,000 won as collateral security right and deliver the certificate of 1,40,00 won as collateral security right and the certificate of 60,000 won as collateral security right to the defendant 1. The plaintiff cannot request the plaintiff to return the above real estate after the expiration of 97 percent of the total amount of 60,000 won as collateral security right to the defendant 1. The plaintiff's transfer registration cannot be viewed as being valid after the expiration of 10,60,000 won as collateral security right to the non-party 1. The plaintiff's transfer registration cannot be viewed as being valid after the expiration of 16,000 won as collateral security right.

3. The plaintiff borrowed gold KRW 1,350,00 between the plaintiff and the non-party 1, and the agreement between the plaintiff and the non-party 1 to grant the registration of ownership transfer in the name of creditor with the real estate of this case more than KRW 3,00,000 at the market price as security is null and void under Article 607 and Article 608 of the Civil Act. Thus, the registration of ownership transfer in the name of the non-party 1 is a registration invalidation, and the registration of ownership transfer in the name of the defendant

Even if the above promise is null and void because the market price of the real estate in this case exceeds the total amount of the principal of the bonds and interest at the time of the promise to return the substitute land between the plaintiff and the non-party 1, as seen earlier, the plaintiff could not seek cancellation of the ownership transfer registration of the non-party 1, since it is clear that the plaintiff failed to make a valid repayment of the above obligation until the registration of ownership transfer by the non-party 1 was made, as seen earlier, in its valid registration, to the extent that the above promise is secured. Thus, the ownership transfer registration of the defendant's name acquired from this cannot be

4. In addition, on December 10, 1969, the Plaintiff deposited KRW 2,382,500, the sum of the above debt and the interest in accordance with an agreement with Nonparty 1, in front of Nonparty 1, deposited in advance. The registration of transfer of ownership on the ground of the settlement of ownership transfer due to the sale in the name of the Defendant, was only the sale with the price of less than 1/3 of the market price of the bonds for which Nonparty 1 did not cancel the registration of transfer of ownership due to the settlement of ownership due to the sale in the name of the Defendant, and even after the registration of transfer of ownership was completed with the name of Defendant, who is the fourth degree of wife, Nonparty 1 was the Defendant’s agent, and even after the registration of transfer of ownership was completed with the name of Defendant, Nonparty 1 sold the instant real estate in installments and the procedure therefor, so long as the above grounds for registration are obviously null and void.

The court below held that the plaintiff deposited 1,350,00 won with the debt amount of 1,350,00 won on December 10, 1969 and 1,012,500 won with the interest rate of 5% per month from June 11, 1967 to the non-party 1 with the non-party 1. However, as seen above, the non-party 1 sold the real estate of this case to the defendant in accordance with the agreement to collect the debt on August 10, 1969, before the plaintiff deposited the repayment of the principal and interest of the above debt amount of this case to the non-party 1,350,00 won, and the non-party 1 and the non-party 1,000 won with the non-party 1, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 1, the defendant 1 and the non-party 1, the non-party 2, the defendant 1 and the non-party 1, the defendant 1 and the non-party 1.

5. On June 29, 1968, the plaintiff asserts that the registration of transfer of ownership in the name of the defendant should be cancelled even though the decision of prohibition on disposal of the real estate in this case, which was established by the Seoul Civil and Security District Court, was executed and recorded on the register on July 1 of the same year.

In light of all the statements in Gap evidence Nos. 1 and 5 without dispute in its establishment, the plaintiff delivered documents required for the ownership transfer registration of the real estate of this case against the non-party 1 to the non-party 1 to the non-party 1 for the purpose of securing obligations against the non-party 1 with the Seoul District Court 68Ka8614, and the ownership transfer registration made under his own name using the above documents is null and void. Since the plaintiff applied for provisional disposition with the right to claim cancellation registration as the right to be preserved and applied for provisional disposition on June 29, 1968, it can be acknowledged that the above court entered in the register with the purport of prohibiting the sale, gift mortgage, and other disposal of the real estate of this case, but as seen earlier, the non-party 1's ownership transfer registration is valid registration made under the agreement with the plaintiff and sold it to the defendant for the execution of security right, and thus, it cannot be accepted as a result of the decision in favor of the defendant's title, and it cannot be accepted.

6. Finally, the Plaintiff asserts that the sale and purchase contract for the instant real estate between Nonparty 1 and the Defendant is not only a juristic act in violation of social order, but also a juristic act that has considerably lost fairness due to old palaces, rashness, or inexperience, registration of transfer of ownership made in the name of the Defendant should be cancelled.

In light of the fact that the sales price of the instant real estate between Nonparty 1 and the Defendant was not 3 minutes compared to the market price at the time, as otherwise alleged, and thus, it cannot be readily concluded that the sales price was in violation of Article 103 of the Civil Act. In addition, if the record verification results (written in Nonparty 7’s appraisal report) carried out at the trial around July 1968, the real estate amounting to KRW 5,430,000, which was KRW 30,000,000 at the market price around 1,69,000, it should be recognized that the real estate was sold at a low price compared to the market price, and it is not presumed that the seller was in an imminent situation, and thus, it cannot be argued that Article 104 of the Civil Act is applicable to an unfair act.

7. Therefore, the plaintiff's assertion that the registration of ownership transfer of the real estate in the name of the defendant should be cancelled is without merit, and thus, the original judgment with the same conclusion that the plaintiff's appeal in this case is just and dismissed is without merit, and the plaintiff's appeal in this case is dismissed. It is so decided as per Disposition with the burden of the plaintiff who lost the

Judge Han Man-Shan (Presiding Judge) Lee Man-soon