[1] In a case where a creditor of a real estate owner filed a lawsuit of cancellation registration against the person who acquired the right of subrogation by exercising the right of subrogation, and a final and conclusive judgment in favor of such creditor is rendered, whether the owner or other creditor may seek a declaration of consent against the third party who has the interest in the registration (affirmative), and whether the same applies to a case where the third party is a creditor who has already been rendered a final and conclusive judgment in favor of

[2] The meaning of "third party who has an interest in the registration" under Article 171 of the Registration of Real Estate Act and the standard for determining whether the above third party bears the duty of acceptance

[3] Where a provisional disposition is made upon request of the creditor of the owner in order to preserve the right to claim cancellation of the registration of the owner with respect to the real estate for which a registration of preservation of ownership has been made for the invalidation of the cause, and where another creditor's subrogation application has made another provisional disposition with respect to the said real estate, whether the creditor of the provisional disposition on behalf of the owner may seek a declaration of consent against the preceding creditor of the provisional disposition on behalf of the owner (affirmative)

[1] Article 218 of the Civil Procedure Act/ [2] Article 171 of the Registration of Real Estate Act/ [3] Article 171 of the Registration of Real Estate Act

[1] Supreme Court Decision 93Da52808 delivered on August 12, 1994 (Gong1994Ha, 2291)

Plaintiff (Attorney Lee Jae-il, Counsel for plaintiff-appellant)

Defendant (Attorney 000,000)

Seoul High Court Decision 2007Na29302 decided January 23, 2008

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

1. In a case where a creditor has filed a lawsuit against a third party obligor by exercising a creditor's subrogation right, and the judgment becomes effective when the debtor becomes aware of the fact that a creditor subrogation lawsuit has been instituted for any reason, and in such a case, if the other creditor files a lawsuit based on the creditor's subrogation right against the same subject matter of lawsuit, the other creditor becomes res judicata of the previous lawsuit (see Supreme Court Decision 93Da52808 delivered on August 12, 1994, etc.). However, since the owner of real estate differs in the subject matter of lawsuit between the parties, the claim for cancellation registration against the person who has a right to the real estate and the claim for declaration of consent against the third party who has an interest in the registration, and even if the res judicata effect extends to the owner or other creditor by having already won the judgment in favor of the person who has the right to the creditor's subrogation right, the owner or other creditor may request the declaration of consent against the third party who has an interest in the registration and the third party is not a creditor who has already received the final judgment in favor of the previous lawsuit.

In the same purport, the court below is justified in rejecting the defendant's prior defense that the lawsuit of this case is unlawful as it goes against the res judicata of the final and conclusive judgment, and there is no error of law by misunderstanding the legal principles as to res judicata of the final and conclusive judgment and subrogation right of the creditor,

2. The registration right holder who is likely to suffer loss by making a cancellation registration in a third party’s column with interest in the registration under Article 171 of the Registration of Real Estate Act is a person who is formally recognized by entry in the registry, and whether such third party bears the duty of consent is determined by whether the third party is liable under the substantive law in relation to the right holder for the cancellation registration (see Supreme Court Decision 2005Da43753, Apr. 27, 2007, etc.).

According to the reasoning of the judgment below and the records, as to the building of this case where a registration of preservation of ownership has been made in the name of co-defendant 1 of the court of first instance, the defendant applied for a provisional disposition of prohibition of disposal by subrogationing the co-defendant 1 of the court of first instance, who was the original acquisitor of the court of first instance, as the right to claim cancellation of the registration of preservation of ownership, and filed for the provisional disposition registration, and thereby, it is recognized formally by the entry of the registry that the above registration of preservation of ownership is likely to be damaged due to the cancellation of the registration of preservation of ownership. Thus, the above registration of preservation of ownership in the name of co-defendant 1 of the court of first instance as to the building of this case constitutes a third party having an interest in the registration. Thus, the defendant is obliged to accept the cancellation of

On the other hand, in order to preserve the right to claim cancellation of the registration of the owner with respect to the real estate for which the invalidation of the cause has been registered, the provisional disposition has been made upon request of the owner's obligee, and the provisional disposition is again made with respect to the real estate at the request of another obligee's subrogation, and the provisional disposition is again made with respect to the real estate at the request of another obligee, and the creditor of the preceding provisional disposition has obtained a final and conclusive judgment in favor of him in the principal lawsuit, and thereby applies for the cancellation registration of the above provisional disposition, the registration of the subsequent provisional disposition shall be cancelled ex officio by the registration public official because the case falls under the case at the time of not being registered by the creditor of the provisional disposition, but it is not possible for the creditor of the subsequent provisional disposition to seek the declaration of consent to cancellation

In the same purport, the court below is justified in holding that the defendant is obligated to express his/her consent to the cancellation of registration of initial ownership as a third party who has an interest in the cancellation of registration of initial ownership in the first instance co-defendant 1, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the validity of the provisional disposition of prohibition of disposal of real estate where the right to be preserved is the right

3. Therefore, the appeal is 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.

Justices Jeon Soo-ahn (Presiding Justice)