Main Issues
Whether the applicant for provisional disposition maintains the benefit of the application for provisional disposition in case where the ownership transfer registration has been made in the third party with respect to the real estate after the provisional disposition was cancelled by the execution of the decision on revocation of provisional disposition (negative)
[Reference Provisions]
Articles 300(1), 305, and 307 of the Civil Execution Act
Reference Cases
Supreme Court Decision 93Da60274 Delivered on August 22, 1995 (Gong1995Ha, 3231) Supreme Court Decision 96Da42307 Delivered on October 13, 1998 (Gong1998Ha, 2650) Supreme Court Decision 2006Meu2580 Delivered on November 30, 2007
Respondents and reappeals
Respondent 1 and 7 others
Applicant (Withdrawal)
Applicant
Claimant Successor and Other Party
Other Party
The order of the court below
Seoul Western District Court Order 2007Ra167 dated February 19, 2008
Text
The reappeal shall be dismissed. The costs of reappeal shall be borne by the respondent.
Reasons
Judgment ex officio is made.
If a provisional disposition is cancelled by the execution of a decision to revoke a provisional disposition, the effect of the provisional disposition is conclusive. Thus, a person who has completed the registration of ownership transfer on the real estate thereafter may oppose the applicant for the provisional disposition with the effect of acquiring the ownership without any restriction on the real estate. As such, if the ownership transfer registration has been made in the name of a third party on the real estate in dispute, the applicant for the provisional disposition shall no longer benefit from applying for the provisional disposition order (see, e.g., Supreme Court Decisions 96Da42307, Oct. 13, 1998; 2006Meu2580, Nov. 30, 2007).
According to the records, the respondent filed an application for provisional disposition against the applicant for the prohibition of disposal of the real estate in this case, and received a provisional disposition from the court, and completed a provisional disposition registration for each of the real estate in this case by execution. Upon the applicant's application for provisional disposition, the court decided to revoke the provisional disposition. The respondent filed an immediate appeal, but on September 3, 2007, the provisional disposition registration for the real estate in this case was revoked on September 3, 2007, and thereafter on December 6, 2007, the ownership transfer registration under the name of the intervenor succeeding to the applicant was made.
Therefore, since the application for provisional disposition of this case has already been invalidated and becomes unlawful, the respondent's appeal is without merit. The judgment of the court below is just in the conclusion that the respondent's appeal is dismissed, and the costs of reappeal are to be borne by the respondent and it is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ran (Presiding Justice)