In a case where the entry registration of provisional disposition is cancelled due to the achievement of the purpose of provisional disposition, etc. while a lawsuit seeking the withdrawal of an application for provisional disposition against the disposal of real estate or the implementation of the procedure for cancellation or cancellation of execution, whether there is a legal interest in seeking implementation

Where the entry registration of a provisional disposition is cancelled in the course of a lawsuit seeking the withdrawal of an application for provisional disposition against disposal of real estate or the implementation of the procedures for cancellation or cancellation of execution, etc., there is no legal interest to seek the withdrawal of an application for provisional disposition or the implementation of the procedures for cancellation or cancellation of execution

Article 248 of the Civil Procedure Act / [Institution of Lawsuit] Articles 293, 300, and 301 of the Civil Execution Act

Supreme Court Decision 2005Da14779 Decided May 27, 2005, Supreme Court Decision 2006Ma1333 Decided June 8, 2007, Supreme Court Decision 2014Da66116 Decided February 12, 2015

Plaintiff

State New Enterprise Co., Ltd and one other (Attorney Clinical-gu, Counsel for the defendant-appellant)

Daejeon High Court Decision 2013Na5884 decided February 13, 2015

The judgment of the court of first instance is reversed. The lawsuit of this case is dismissed. All costs are borne by the Defendants.

The grounds of appeal are examined ex officio before judgment.

In cases where the entry registration of provisional disposition was cancelled due to the achievement of the purpose of provisional disposition while a lawsuit seeking the withdrawal of application for provisional disposition or the implementation of the procedure for revoking or cancelling the execution of provisional disposition, there is no legal interest in seeking the withdrawal of application for provisional disposition or the implementation of the procedure for revoking or cancelling execution of provisional disposition (see, e.g., Supreme Court Decisions 2005Da14779, May 27, 2005; 2006Ma1333, Jun. 8, 2007; 2014Da66116, Feb. 12, 2015).

According to the reasoning of the lower judgment and the record, the following circumstances are revealed. ① The Defendants received a provisional injunction on December 16, 2005 against the instant apartment on the land and 15 lots (hereinafter “instant apartment”) owned by Hancheon-si Construction Co., Ltd. (hereinafter “the instant apartment”). The registration of provisional injunction was completed on December 27, 2005 by the entrustment of the registration of provisional injunction on the instant apartment on December 27, 2005 and the registration of provisional injunction in the name of the Defendants. ② The Plaintiff filed a claim against the Defendants for the execution of the procedure to withdraw the application and cancel the execution of the instant provisional injunction against the instant apartment among the instant provisional injunction. ③ On August 10, 2015, the instant provisional injunction had been completed on the instant apartment on the part of ○○○dong, which was pending in the court of final appeal after the issuance of the lower judgment. The instant provisional injunction was also revoked by the registration of the instant provisional injunction.

Therefore, the judgment of the court below cannot be maintained as it is, since the lawsuit of this case seeking the withdrawal of the application for provisional disposition of this case and the implementation of the procedure for rescission of execution had no interest in the lawsuit pending in the appeal

Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court below is reversed. Since this case is sufficient for the court to directly render a judgment, the judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed, and the total cost of the lawsuit shall be borne by the defendants pursuant to Articles 99 and 105 of the Civil Procedure Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)