[1] The validity of the provisional disposition prohibiting the deceased person from disposing of the deceased person as the debtor (negative), and whether the debtor's inheritor can seek revocation of the provisional disposition null and void (affirmative)

[2] Whether there is a benefit in filing an objection against the provisional disposition in a case where the transfer of ownership based on the judgment in favor of the principal claim is made after the provisional disposition for preserving the right to claim the transfer of real estate ownership is made

[1] Even if an application for provisional disposition prohibiting the provisional disposition against a deceased person as an obligor is unlawful and the provisional disposition prohibiting the provisional disposition was rendered upon such application, such decision does not affect the inheritor as it is null and void. Thus, the inheritor of the obligor can seek revocation by raising an objection against the provisional disposition order with the means to remove the appearance of the invalid provisional disposition order, as an ordinary succession.

[2] If a creditor who won a provisional disposition for preserving the right to claim the transfer of real estate ownership completes the registration of ownership transfer based on the final and conclusive judgment, the purpose of the provisional disposition is achieved, and such provisional disposition can be cancelled at the request of the court of execution at the request of the interested parties. Therefore, there is no benefit to seek the revocation of the provisional disposition, barring any special circumstance.

[1] Articles 703 and 715 of the Civil Procedure Act / [2] Articles 703 and 715 of the Civil Procedure Act

[1] Supreme Court Decision 75Da809 delivered on June 23, 1976 (Gong1983, 64) Supreme Court Decision 89Da9 delivered on March 29, 1991 (Gong1991, 1283)

Applicant (Attorney Jeon Byung-deok, Counsel for defendant-appellant)

Respondent

Applicant (Attorney Seo-sung et al., Counsel for defendant-appellant)

Seoul High Court Decision 2000Na 11654 delivered on May 30, 2000

The appeal shall be dismissed. The costs of appeal shall be assessed against the petitioner.

1. Comprehensively taking account of all the evidence, the court below decided that the applicant filed an objection to the provisional disposition on August 8, 1996 with the government support of the Seoul District Court (hereinafter referred to as "the real estate of this case") on the 16th of the same month by submitting an application for provisional disposition indicating the respondent as the debtor. However, the respondent died on August 5, 1996, which was before the above provisional disposition application, and became the heir of the claimant and the non-party 1, the non-party 2, the non-party 3, and the non-party 4. The plaintiff filed an objection to the provisional disposition on the 10,90 square meters of the land of this case (the part which was divided into the non-party 1 and the non-party 2, the non-party 3, and the non-party 96th of the judgment on the 96th of the judgment on the 96th of the judgment on the 96th of the judgment on the ground that the respondent's claim for ownership transfer registration was void on the 96th of the above real estate of this case.

2. Even if an application for provisional disposition prohibiting the disposal of a deceased person as an obligor is unlawful and the provisional disposition prohibiting the disposal by the application was made, the decision does not affect the inheritor as it is null and void (see, e.g., Supreme Court Decisions 82Meu84, Oct. 26, 1982; 89Da9, Mar. 29, 191). Thus, the inheritor of the obligor may seek revocation by filing an objection against the provisional disposition as a means to remove the appearance arising from the invalid provisional disposition order, which was an ordinary succession. However, in the case of the principal lawsuit of the provisional disposition for preserving the right to claim the transfer of real estate ownership, if the winning creditor files a registration of ownership transfer by the final and conclusive judgment, the provisional disposition becomes the objective of the provisional disposition, and such provisional disposition shall be revoked by the entrustment of the court of execution at the request of the interested party, barring any special circumstance. Therefore, there is no benefit to seek revocation of the provisional disposition as an objection against the provisional disposition.

In the case of this case, the decision of the court below that there was no benefit in the objection by the inheritor is just in its conclusion that the objection of this case was dismissed on the ground that it was unlawful, and there is no error of law by misunderstanding the legal principles as to the interest in the objection or the requirement of lawsuit, which affected the conclusion of the judgment.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)