[1] The requirements for intervention by an independent party under Article 79(1) of the Civil Procedure Act

[2] In the case of a provisional disposition as to the subject of dispute under Article 300(1) of the Civil Execution Act, whether the necessity of preservation is recognized where the vindication of the right to be preserved is recognized (affirmative)

[1] In the intervention of an independent party, the intervention of the owner of rights may be permitted when the plaintiff's principal claim and the intervenor's claim are deemed to be incompatible with the plaintiff's claim, and the intervention of the prevention of harm may be allowed in a case where it is objectively acknowledged that the plaintiff and the defendant have the intent to harm the intervenor through the lawsuit, and it is acknowledged that the plaintiff and the defendant's right or legal status might be infringed upon as a result of the lawsuit.

[2] The provisional disposition with respect to the object of dispute is permissible when the current state is changed, if the party concerned fails to exercise his/her right or is highly difficult to enforce it (Article 300(1) of the Civil Execution Act). Unlike the case of the so-called satisfactory provisional disposition, if the vindication of the right to be preserved is acknowledged in light of the provisional nature and swiftness of the preservative measure, barring any other special circumstances, it shall be deemed that the necessity of preservation is also recognized, barring any other special circumstances. Even if there are circumstances such as the same right to be preserved has already been executed by other creditors, the execution of the same provisional disposition has already been completed by other creditors with respect to the same right to be preserved, or the case of the principal lawsuit with respect to the application for the future provisional disposition may be involved in the principal lawsuit in accordance with the preceding provisional disposition, or there is a possibility that

[1] Article 79(1) of the Civil Procedure Act / [2] Article 300(1) of the Civil Execution Act

[1] Supreme Court Decision 95Da40977 and 40984 delivered on June 27, 1997 (Gong1997Ha, 2302), Supreme Court Decision 98Da4852, 48569 delivered on May 28, 199 (Gong1999Ha, 1277), Supreme Court Decision 99Da3531, 35348 delivered on September 28, 2001 (Gong2001Ha, 2348), Supreme Court Decision 2002Da694, 700 delivered on June 13, 2003 (Gong203Ha, 1524)

Creditor (Attorney Park Jae-in et al., Counsel for the plaintiff-appellant)

The debtor

Ulsan District Court Order 2005Ra24 dated August 2, 2005

The order of the court below is reversed, and the case is remanded to Ulsan District Court Panel Division.

1. The obligee filed a provisional injunction against the obligor on October 24, 1983, alleging that the obligee, etc. purchased the instant land from the obligor on October 24, 1983, but died on February 16, 2005, as part of the preservation act of jointly owned property, the obligee, etc. filed an application against the obligor for provisional injunction against disposal of the instant land. The court below rejected the obligee’s application for provisional injunction against disposal against the obligor on behalf of Nonparty 1 on January 25, 2005, who claimed that Nonparty 2 purchased the instant land from the deceased Nonparty 1 on his birth, on behalf of the co-inheritors, before completing the provisional injunction registration until March 22, 2005, and subsequently sought the obligor to perform the provisional injunction registration procedure in sequential order against the obligor, the obligee cannot be deemed to have satisfied the purpose of the provisional injunction injunction, and thus, the obligee cannot be deemed to have maintained the obligee’s application for provisional injunction against the obligee’s non-party 1.

2. However, the lower court’s determination is difficult to accept for the following reasons.

First of all, participation in the lawsuit by an independent party can be permitted when the plaintiff's principal claim and the intervenor's claim are deemed to be incompatible with the plaintiff's claim. In this case, participation in the lawsuit by an independent party may be permitted when it is objectively recognized that the plaintiff and the defendant have the intent to harm the intervenor through the lawsuit in question and it is acknowledged that the plaintiff's right or legal status may be infringed (see Supreme Court Decision 2002Da694, 700 delivered on June 13, 2003). In this case, the creditor's right to claim ownership transfer and the right to claim ownership transfer transfer registration against the debtor cannot be compatible with the creditor, so the participation by the creditor cannot be permitted. In light of the records, since the non-party 2 and the debtor cannot be seen as having the intent to harm the creditor through the lawsuit in question, it cannot be seen as being permitted to be dismissed by the court below's decision that the plaintiff's right to claim for ownership transfer registration and the non-party 2 had an opinion to harm the creditor through the lawsuit in question.

In addition, the provisional disposition with regard to the object of dispute, such as such type of provisional disposition, is allowed when the situation is changed and it is highly difficult for the parties to execute the right or execute it (Article 300(1) of the Civil Execution Act). Unlike the case of the so-called satisfactory provisional disposition, if the vindication of the right to be preserved is acknowledged in light of the provisional nature, swiftness, etc. of the provisional disposition, barring any other special circumstances, it shall be deemed that the necessity of preservation is also recognized. Even if there are circumstances such as the same right to be preserved has already been executed by other creditors, the same provisional disposition may be completed by other creditors, or the principal lawsuit following the prior provisional disposition may be involved in the principal lawsuit following the prior provisional disposition, or there is a possibility that the principal lawsuit following the prior provisional disposition may be involved in the double lawsuit, such circumstance alone may not readily conclude that there is no need to preserve immediately. This is because if the subsequent provisional disposition application is rejected, it may be highly likely that the subsequent provisional disposition obligee may withdraw the prior provisional disposition application between the debtor and the subsequent provisional disposition may cause for damages.

In light of the above legal principles, in this case where the debtor does not dispute the existence of the creditor's right to the preservation of this case, it cannot be said that there is no need to preserve the application for provisional disposition of this case solely on the grounds that the court below completed the provisional disposition prohibition registration as to the right to the preservation of this case at the request of the non-party 2, who is the subrogated creditor, or the creditor can lawfully act as a co-defendant in the lawsuit on the merits.

Nevertheless, the court below did not err in the misapprehension of the Constitution, law, order, or rule that affected the decision, on the ground that there is no need to preserve the provisional disposition of this case, and thus rejected the motion of this case by the creditor.

3. Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a decision as per Disposition.

Justices Yang Sung-tae (Presiding Justice)