Whether the claim for cancellation of ownership transfer registration can be useful in the subsequent claim for ownership transfer registration filed after the decision against the claim for cancellation of ownership transfer registration.

If a claimant for cancellation registration, who is a claim that the respondent had tried to preserve by the decision of prohibition of provisional disposition on real estate disposal, has lost in the case on the merits, this constitutes a “change in circumstances” as stipulated in Article 706 of the Civil Procedure Act, and thus, the diversion of provisional disposition is justified and is not allowed.

Article 706 of the Civil Procedure Act, Article 715 of the Civil Procedure Act

Supreme Court Decision 65Da2201 Delivered on January 25, 1966

Applicant

Respondent

Seoul High Court Decision 66Na299 delivered on August 23, 1966

The appeal is dismissed.

The costs of appeal shall be assessed against the respondent.

We examine the Respondent’s ground of appeal

According to the facts duly admitted by the court below, the respondent filed a lawsuit claiming cancellation of the ownership transfer registration against the above applicant and the applicant (the respondent filed a lawsuit claiming cancellation of the ownership transfer registration on the ground of invalidity of the ground of the above claim, and the applicant simultaneously filed a claim for cancellation of the ownership transfer registration on the ground that the non-applicant and the applicant filed the lawsuit against the above applicant for cancellation of the ownership transfer registration (the non-applicant filed a claim for cancellation of the ownership transfer registration on the ground of invalidity of the ground of debt payment, and the applicant filed a preliminary claim for cancellation of the ownership transfer registration at the same time with the payment of certain money from the respondent, at the same time as the applicant received the payment from the respondent, and at the same time became final and conclusive through the first, second and third instances of the judgment of the court below against the respondent (the judgment of the court below 64Da587 decided on April 22, 1963 and the judgment of the court below against the above respondent 65Da8657 decided June 5, 1967).

Therefore, the claim for cancellation registration, which is a claim that the respondent tried to preserve in accordance with the above 65Kada58's provisional disposition order, was denied as a judgment against the case on the merits of the above case, and the claim for cancellation registration, which is a claim that the applicant for provisional disposition loses in the principal lawsuit on the merits of the provisional disposition, shall be subject to the "assessment of circumstances" under Article 706 of the Civil Procedure Act which is applicable mutatis mutandis by Article 715 of the same Act, and therefore, it is legitimate that the court below allowed the application for revocation of provisional disposition on the above purport, and therefore

The issue is that, in the Supreme Court Decision (Supreme Court Decision 65Da869 delivered on June 29, 1965) against the above respondent, "A debtor of a weak meaning of a security may file a claim for cancellation of ownership transfer registration on the real estate on the ground of extinguishment of the purpose of the security after repayment of the obligation, but the applicant may file a claim for registration of ownership transfer on the ground of repayment," and since the applicant asserted "sale in the terms and conditions of redemption" in the above lawsuit, the respondent lost the claim for cancellation of ownership transfer registration and paid the debt around May 1966 (No. 1) and performed the procedure for registration of ownership transfer on the real estate against the applicant, the previous District Court Decision 66Da4689 delivered on June 29, 196, which held that the disposal prohibition of this case constitutes a provisional disposition for ownership transfer registration of the above 66Ga468 of the above case.

However, this paper argues that the right to claim the preservation of the original lawsuit (the lawsuit claiming the cancellation of ownership transfer registration) against the above provisional disposition is not considered as the right to claim the cancellation of ownership transfer registration procedure, but it is not possible to permit it, and it is not possible to permit the utilization of the provisional disposition as well as the previous precedents (the Supreme Court Decision 65Da2201 delivered on Jan. 25, 1966, 65Da2201 delivered on Sept. 12, 1963, 63Da534 delivered on Sept. 12, 1963), and as long as the lawsuit for the registration of ownership transfer was filed after the lawsuit for the cancellation of ownership transfer registration was finalized against the above lawsuit for the cancellation of ownership transfer registration itself, it is not reasonable as it is the lawsuit for the registration of ownership transfer in the original case.

Therefore, it is so decided as per Disposition with the assent of all participating judges.

Supreme Court Judge Lee Young-su (Presiding Judge) (Presiding Judge) and Lee Dong-dong Gyeong-dong