[1] Whether the creditor holding a provisional disposition prohibited from taking the provisional disposition has a benefit to seek a lawsuit against the debtor for the implementation of the procedure for registration of recovery of the provisional disposition cancelled at the court's request (negative)

[2] The method for a creditor of provisional disposition claiming that the application for cancellation of provisional disposition was forged to seek restitution of cancellation of the provisional disposition registration cancelled at the court’s commission (=Objection against the enforcement)

[1] Registration of a provisional disposition prohibiting disposal of real estate cannot be made directly by the creditor or debtor, and must be made by the commission of the court. In the case where the entry of provisional disposition prohibiting disposal for which the party is unable to make an application is cancelled by the commission of the court, the registration of recovery should also be made by the commission of the court. Thus, there is no benefit to compel the execution of the procedure for registration of recovery of provisional disposition revoking provisional disposition by the creditor of provisional disposition prohibiting disposal.

[2] The application for cancellation of provisional disposition by the creditor of provisional disposition falls under the application for withdrawal of the application for provisional disposition or for cancellation of the execution, and such application is an act which forms the execution procedure of provisional disposition, and whether it is based on the intention of the creditor of provisional disposition is a matter to be investigated and determined by the execution court. Therefore, the reason that the application is forged shall be the execution act based on the application, that is, the execution of the entrustment of cancellation of the registration for entry into provisional disposition. Therefore, the creditor of provisional disposition who claims that the application for cancellation of provisional disposition is forged may seek cancellation through the execution against the execution court (if there is a third party having interests in the registration in the restoration of the registration for entry into provisional disposition, it is necessary to submit his written consent or a certified copy of the judgment against it to the execution court), and if there is such reason, the execution court shall request the cancellation of the registration for entry into provisional disposition to the execution court.

[1] Articles 226 (Institution of Lawsuit), 710, and 715 of the Civil Procedure Act, Article 27 of the Registration of Real Estate Act / [2] Articles 504, 710, and 715 of the Civil Procedure Act, Articles 27 and 75 of the Registration of Real Estate Act

[1] Supreme Court Decision 82Da1168 delivered on March 8, 1983 (Gong1983, 652), Supreme Court Decision 95Da6878 delivered on May 26, 1995 (Gong1995Ha, 2260), Supreme Court Decision 94Da27205 delivered on May 31, 1996 (Gong196Ha, 2007), Supreme Court Decision 95Da13951 delivered on February 14, 1997 (Gong197Sang, 734) / [2] Supreme Court Order 86Ma51 delivered on March 24, 1987 (Gong1987, 1041)

Plaintiff (Attorney Seo Jae-sik et al., Counsel for the plaintiff-appellant)

The Korea Foundation of Science and Technology Foundation

Seoul High Court Decision 98Na66811 delivered on April 29, 1999

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

The grounds of appeal are examined.

The plaintiff filed an application for provisional disposition with respect to each of the above real estates owned by the defendant as the preserved right to claim the ownership transfer registration based on the sales contract between the plaintiff and the defendant and filed an application for provisional disposition with respect to each of the above real estates as of July 19, 1997. On July 3, 1998, the plaintiff's joint representative director, who is the plaintiff's joint representative director, prepared an application for cancellation of provisional disposition in the name of the above non-party 1 and 2, and received it to the above court on July 10, 1998, and cancelled the above provisional disposition registration on July 10, 1998. The above registration is without any reason for cancellation, and therefore, the plaintiff claims against the defendant that the procedure for cancellation of provisional disposition registration is implemented.

However, registration of a provisional disposition prohibiting disposal of real estate cannot be made directly by the creditor or debtor, and it must be made by the commission of the court. Thus, in case where the entry of provisional disposition prohibiting disposal for which the party is unable to make a request is cancelled by the commission of the court, the registration of recovery should also be made by the commission of the court. Thus, in this case, there is no benefit in demanding the execution of the procedure for registration of recovery of provisional disposition cancelled by the creditor prohibiting disposal of real estate (see Supreme Court Decision 95Da13951, Feb. 14, 1997).

However, the application for cancellation of provisional disposition by the creditor of provisional disposition falls under the application for withdrawal of the application for provisional disposition or for cancellation of the execution, and such application is an act constituting the execution procedure of provisional disposition, and whether it is based on the intention of the creditor of provisional disposition is to be investigated and determined by the execution court. Therefore, the reason that the application is forged shall be the execution act based on the application, i.e., the execution of the entrustment of cancellation of the registration of provisional disposition entry. Therefore, the plaintiff who asserts that the application for cancellation of provisional disposition in this case is forged can seek cancellation through execution against the execution court of provisional disposition (if there is a third party having interests in the registration in the restoration of the registration of provisional disposition, it is necessary to submit his written consent or a certified copy of the judgment against it to the execution court), and if there is such reason, the execution court shall request the cancellation registration of provisional disposition entry registration.

In the same purport, the decision of the court of first instance that rejected the plaintiff's lawsuit of this case is just, and there is no illegality such as misunderstanding of legal principles or incomplete hearing as pointed out.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)