(a) Where a seizure or provisional seizure is made against the right to claim the registration of transfer of ownership, whether a third party who has received the registration of transfer from the garnishee or debtor may claim the cancellation of registration by asserting the invalidity of the cause (negative)

B. Whether it is necessary to cancel the registration where the registration of ownership transfer has been made in the name of the debtor from the third debtor after the provisional seizure of the right to claim ownership transfer registration (negative)

(c) Where a debtor files a lawsuit against a third party debtor even though a provisional seizure is made against the claim for transfer registration of ownership, the court's quoted decision and the method by which the third party debtor may arbitrarily perform his/her obligation for transfer registration;

A. Attachment or provisional attachment against the right to claim registration of transfer of ownership is not against a claim, but against a real estate which is the object of the right to claim registration, and it is not against a debtor and a third party debtor, and there is no way to notify it in the register under the current law, as well as to serve a decision on the debtor and the third party debtor, it is effective only between the creditor, the debtor, and the third party debtor. Since attachment or provisional attachment cannot claim the effect of prohibition of disposal of seizure or provisional attachment cannot be asserted, the seizure or provisional attachment of the right to claim registration of transfer of ownership prohibits disposal of the real estate itself which is the object of the right to claim, and it cannot be claimed for cancellation

B. The provisional seizure of the right to claim the registration of ownership transfer is premised on the transfer of ownership in the name of the debtor and the compulsory execution against it. Thus, even if the right to claim the registration of ownership transfer was provisionally seized, if the registration of ownership transfer has been completed in the name of the debtor from the third debtor, the creditor should not be required to cancel the registration of real estate itself as provisional

C. Generally, even if a provisional attachment on a claim exists, it is prohibited for an obligor to collect benefits from a third obligor, so the obligor is entitled to file a lawsuit against the third obligor, and the court cannot reject the provisional attachment on the ground that it is a provisional attachment. However, in principle, the judgment ordering the registration of ownership transfer becomes final and conclusive, the obligor can unilaterally file an application for the registration of ownership transfer, and in such a case, the third obligor has no means to block it. In this case, unless the third obligor is subject to the cancellation of provisional attachment, the court should not accept it, and if the third obligor intends to arbitrarily perform the registration of ownership transfer, the custodian shall transfer the right to the custodian pursuant to Article 577 of the Civil Procedure Act. In this case, the custodian shall receive it from the legal representative and terminate the registration of ownership transfer in the name

(a)Article 696(a) of the Civil Procedure Act; (b) Article 557(c) of the same Act;

(b) Supreme Court Decision 88Meu6488 Decided May 9, 1989 (Gong1989, 895)

A. Supreme Court Decision 84Meu2267 delivered on September 27, 1988 (Gong1988, 1313)

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

C. Supreme Court Decision 88Meu25038 Decided November 24, 1989 (Gong190, 112)

Plaintiff 1 and two others (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Dong-gu et al., Counsel for the defendant-appellant-appellee and one other ( Counsel for the plaintiff-appellant-appellant)

Daegu High Court Decision 91Na5021 delivered on December 19, 1991

The judgment below is reversed, and the case is remanded to the Daegu High Court.

We examine the grounds of appeal.

On the first ground for appeal

1. According to the reasoning of the judgment below, the court below

A. The instant real estate was originally owned by the Industrial Bank of Korea, but the registration of ownership transfer was completed under the name of the Defendant Dongdong Business Co., Ltd. (hereinafter “Defendant Dongdong Business”), and the registration of ownership transfer was completed under the name of Defendant Newcom Co., Ltd. (hereinafter “Defendant Newcom”), and the Plaintiffs, as creditors who hold monetary claims against Defendant Dongdong Business, filed a provisional attachment against the same Defendant’s right to claim ownership transfer registration against the Industrial Bank of Korea before the registration of ownership transfer was completed, and thereafter, acknowledged the facts that the Plaintiffs became final and conclusive after obtaining a favorable judgment in the lawsuit on the merits of the provisional attachment.

B. The registration of transfer of ownership in the name of the defendant Dongdong Business was completed after the above provisional seizure, and thus, the registration of transfer of ownership in the name of the defendant Dongdong Business is null and void against the plaintiffs in violation of the prohibition of disposition of provisional seizure, and the registration of transfer of ownership in the name of the defendant new post is null and void

C. All of the registration of ownership transfer in the name of the defendants against the real estate of this case was based on a final judgment. The plaintiffs' claim of this case seeking the cancellation of the registration in the name of the defendants is unfair because the claims of the plaintiffs, which are the claim for ownership transfer registration which was provisionally attached, are more favorable than the real rights (ownership) of the defendants who became the owner by the registration of ownership transfer in the name of the defendants. As to the defendants' claim that provisional seizure against the right to claim ownership transfer registration cannot be asserted against the defendants who completed the procedure for ownership transfer registration because there is no system to announce it in the registry under the current law, since there is no system to announce it in the registry, the provisional seizure against the right to claim ownership transfer registration, if there is a seizure or provisional seizure against the third debtor's claim for ownership transfer registration, the registration in violation thereof shall be null and void in relation to all subsequent registrations or provisional seizure creditors

2. However, the seizure or provisional seizure against the right to claim the transfer registration of ownership is not against the claim, but against the subject of the right to claim the registration, and there is no way to notify the decision to the debtor and the third debtor in the register under the current law, and it has an effect only between the creditor, the debtor and the third debtor, and a third party who has no relation with the seizure or provisional seizure cannot claim the effect of prohibition of disposal of the seizure or provisional seizure.

Therefore, the seizure or provisional seizure of the right to claim ownership transfer registration does not have the effect of prohibiting the disposal of the subject real estate itself, and with respect to the third party who has received the ownership transfer registration from the third party debtor or debtor, the right to claim the cancellation cannot be claimed because the acquired registration is the invalidation of the cause.

The seizure or provisional seizure of the original monetary claim is prohibited from paying to the debtor to the third party debtor on the premise that the third party debtor applies for an order or collection order with respect to the relevant monetary claim by its realization method, and is prohibited from disposing of and receiving the claim. The seizure or provisional seizure against the right to claim ownership transfer transfer registration under the Civil Procedure Act does not obtain the satisfaction of the claim with the price by disposing of the right to claim ownership transfer registration itself immediately, and it is a system to realize the content of the right to claim first, and to satisfy the claim by conducting compulsory execution after completing the registration of ownership transfer in the name of the debtor and making it a debtor's responsible property.

The court below seems to have made the above judgment by putting emphasis on the effect of prohibition of repayment of attachment or provisional attachment or of prohibition of disposal, but it is unfair because it recognizes the detailed effect on seizure or provisional attachment of a claim for registration of ownership transfer of real estate not published in the registry, and recognizes the right of seizure or provisional attachment to the person holding the right of seizure of claims or provisional attachment, and it is likely to cause unexpected damages to a third party and impair the safety of transaction.

In conflict with this view, the previous precedents (Law No. 89∑19108 delivered on June 22, 1990, Supreme Court Decision 89Meu19108) will be discarded.

3. As such, the provisional seizure of the right to claim the registration of ownership transfer is premised on the transfer of ownership in the debtor's name and compulsory execution against it. Thus, even if the right to claim the registration of ownership transfer was provisionally seized, if the registration of ownership transfer has been completed in the debtor's name from the third debtor for any course, the creditor should not be required to cancel this registration. If the registration is cancelled by deeming the above registration as invalid cause, the provisional seizure creditor will cancel it and then make the same registration again.

However, if there is a provisional attachment against the claim for registration of transfer, the third debtor should not arbitrarily perform the registration of transfer according to the effect of prohibition of performance, and if the debtor causes damage to the creditor as a result of the disposal of the provisional attachment, the third debtor should be held liable for damages.

4. Generally, even if a provisional attachment is made on a claim, it is prohibited for an obligor to collect benefits from a third obligor in reality. Thus, the obligor may file a lawsuit against the third obligor to seek performance of the provisional attachment, and the court cannot reject the provisional attachment on the ground that it is a provisional attachment (see, e.g., Supreme Court Decision 8Da25038, Nov. 24, 1989).

This is because, as a debtor, it is necessary to acquire a title of debt even if his claim against a third party debtor is provisionally seized, or there is a need to suspend prescription, and in particular, in case where a provisional seizure on his claim is made during the proceeding of a lawsuit, it is difficult to bring a lawsuit again after the provisional seizure is revoked if the claim is rejected for this reason.

However, the judgment ordering the registration of ownership transfer is a judgment ordering a doctor's statement, which becomes final and conclusive, the obligor can unilaterally apply for the registration of ownership transfer, and the garnishee cannot be seen as above since there is no way to block it. In such a case, unless the third obligor is subject to the cancellation of provisional seizure, the court shall not accept it. If the third obligor intends to arbitrarily perform the registration of ownership transfer, the custodian shall transfer the right to the custodian pursuant to Article 577 of the Civil Procedure Act. In this case, the custodian shall receive it from the legal representative of the obligor and terminate the registration

5. The judgment of the court below is not erroneous in the misapprehension of legal principles as to provisional seizure of the right to claim the transfer of real estate ownership.

Therefore, without examining the remainder of the grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Chief Justice Lee Yong-ju (Presiding Justice) of the Supreme Court of Justice Lee Jae-ho (Presiding Justice)