After a provisional disposition prohibiting the transfer of possession has been executed with such provisional disposition, the fact of such possession shall not be contested legally.

The defendants were in possession of each of the parts stated in the purport of the claim in this case. The plaintiff, prior to the institution of the lawsuit, obtained a provisional disposition order that prohibits the transfer of possession or any other disposition in respect of each of the parts in possession against the defendants before the institution of the lawsuit, and the execution of the provisional disposition is recognized, and there is no evidence to reverse this recognition. Therefore, it cannot be argued that the defendants

Article 719 of the Civil Procedure Act

[Plaintiff-Appellant] 15, 1962 4294 private commercialis909 decided March 15, 1962 (Supreme Court Decision 7069 decided March 15, 196; Decision No. 719(8)101 of the Civil Procedure Act

Plaintiff

Defendant 1 and four others

Jeonju District Court of the first instance (67Ga294)

The appeal is dismissed.

Costs of appeal shall be borne by the Defendants.

원고에게 피고 1은 전주시 다가동 1가 33의 1 건물 2호 목조와즙 평가건 영업소 1동 건평 37평 4홉중 별지도면의 ㈀부분 7평 6홉 3작을, 피고 2는 같은 건물중 같은도면 ㈁부분 7평 3홉 6작을, 피고 3은 같은 건물중 같은도면 ㈂부분 7평 3홉 6작을, 피고 4는 같은 건물중 같은도면 ㈃부분 7평 3홉 6작을, 피고 5는 같은 건물중 같은도면 ㈄부분 7평 6홉 3작을 각 명도하라.

Costs of lawsuit shall be borne by the defendants. This judgment may be provisionally executed.

The judgment of the first instance is revoked. The plaintiff's claim is dismissed. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

성립에 다툼이 없는 갑 제1호증 내지 제6호증 공성부분의 성립을 인정하므로서 진정한 것으로 인정되는 갑 제13호증의 각 기재내용과 원심증인 소외 1, 2, 3 당심증인 소외 4의 각 증언에 당사자 변론의 전취지를 종합하면 전주시 다가동 1가 33의 1에는 일제시대인 1920.9.30.에 보존등기된 목조건물이 있었는데 이것이 전전 이전되고 개축되어 1955.6.24. 목조평가건 주가 1동 건평 32평 5홉으로 변경등기되고 피고 5가 이를 취득하여 같은해 12.2. 소유권이전등기를 마친 사실, 피고 5는 위 건물에 관하여 전주시장의 건축허가를 얻어 1964.10.20.경 이를 전부 철거한 후 목조와즙 평가건 영업소 1동 건평 37평 4홉의 본건 건물을 신축하여(이하 본건 영업소라고 약칭한다) 1964.12.23.자로 전주시 가옥세대장에 등제함과 동시에 보존등기를 마친 사실, 위 보존등기 당시 전주시 다가동 1가 33의 1 대지상에는 등기부상 구건물이 멸실등기 되지 아니한 채 남아 있었기 때문에 본건 영업소에는 "제2호"라는 번호를 부가했었으나 구건물은 위에서 본바와 같이 이미 멸실되었었으며 동 구건물 위에는 등기부상 소유권 이외의 권리에 관한 등기의 기재가 없었던 사실, 본건 영업소는 그후 경매되어 1966.2.15. 전주지방법원의 경락허가결정으로 원고가 소유권을 취득한 사실, 본건 영업소중 피고 1이 별지도면의 ㈀부분을, 피고 2가 위 도면의 ㈁부분을, 피고 3이 ㈂부분을, 피고 4가 ㈃부분을, 피고 5가 ㈄부분을 각 점유중이며 피고 1과 피고 5의 각 점유부분은 각 7평 6홉 3작이고 피고 2, 3, 4의 각 점유부분은 각 7평 3홉 6작인 사실을 각 인정할 수 있다.

The defendants' legal representative is not the plaintiff's ownership but the non-party 5's ownership. In other words, since the above building was preserved in 1920, the defendant 5 was sold before and completed the registration of ownership on October 9, 195, and it was sold to the non-party 6 on July 26, 1965, and the non-party 6 sold the above house to the non-party 7 on the non-party 5's request of the non-party 8 on April 29, 1967, and the non-party 5 acquired ownership after the non-party 1's request of the above non-party 4 on May 18, 192, and the non-party 1's new description on the non-party 1's new building No. 2's new registration No. 94 on October 26, 1965 and the non-party 1's new registration No. 3's new evidence No. 1's new registration No. 971's.

The defendants' legal representative stated that the preservation registration of this case was null and void since the plaintiff's office member, non-party 9, who was in mind for the collection of this case, fabricated in the name of the defendant 5, did not register the destruction of the old building, i.e., the 32 square meters of 1920, 1964, and had a building of 32 square meters of 5 square meters of 1920,000. However, on October 20, 1964, the plaintiff's office member, who was in mind for the collection of this case, fabricated the false facts into the new building's new construction of this case's place of business in the name of the defendant 5, and registered the preservation registration of this case's 1,000 as stated in the record, but this share owner did not register the destruction of the old building as to this case's 2nd of 1964,00,000's new building's 2nd of 1964.

In addition, the defendants' legal representative asserted that all of the defendant did not move out of the present place of business and did not possess it, but since the establishment of the public part of evidence Nos. 7 through 12 is recognized, in full view of the whole purport of the pleadings in each of the contents of evidence Nos. 7 through 12, the defendants were in possession of each part of the original lawsuit, which is acknowledged as authentic, but before the plaintiff raised the original lawsuit, he cannot assert that the defendants do not occupy it at present under the law because it is acknowledged that the execution was conducted with the provisional disposition ruling No. 67Ka170 of the Jeonju District Court, which prohibits possession, transfer or other disposal of each part of the defendant's possession, and there is no evidence such as the reversal of this recognition, etc. (the contents of evidence No. 4 of this case No. 4 are an execution protocol concerning the old building which was not loaded, it is legally null and void, and the defendant No. 5 is merely an execution of provisional execution of the judgment No. 1967, Jul. 26, 196).

In addition, the defendants' attorney argues that the preservation registration of the above building was invalid because it was not made by the defendant 5's intention, which was the owner at the time when the above building was entirely a new building. However, according to the testimony of the non-party 10 of the court below witness, the above preservation registration was made upon the defendant 5's request, and it is recognized that it was done by the defendant 5,

Therefore, this case's business office is interpreted as the plaintiff's ownership at present, and the defendants are obligated to order the plaintiff to submit their respective portions of possession to the plaintiff. Thus, the plaintiff's claim is justified and the judgment of the court of first instance that makes the conclusion is just and the appeal is groundless. Accordingly, the appeal is dismissed, and the costs of appeal are assessed against the defendants in accordance with the principle of the losing party's burden.

Judges Kim Dong-chul (Presiding Justice)