[1] Whether the transferee of the object of provisional disposition has the eligibility to seek the revocation of the decision of provisional disposition due to the change in circumstances (affirmative)

[2] Where a trust under the Trust Act is terminated and the trustee transfers the trust property to the truster and the trustee cancels the registration of ownership transfer without completing the registration of ownership transfer, whether the truster acquires the trust property again (affirmative)

[3] Whether the truster or the subsequent purchaser to whom the ownership of the trust property is re-transfered due to the termination of the trust under the Trust Act is eligible to seek a revocation of the provisional disposition order where the trustee is the debtor due to changes in circumstances (affirmative)

[1] After a provisional disposition is executed, the person who has taken over the object of the provisional disposition shall be entitled to file an application for cancellation of the provisional disposition due to changes in circumstances.

[2] If a trust is terminated upon termination of a trust under the Trust Act, the trust relationship will lose its effect in the future. Even if the trustee transfers the ownership of real estate to the truster who is the right holder to whom the trust property belongs, and instead takes the method of cancelling the registration of ownership transfer, the truster shall acquire the ownership again on the basis of the trustee’s ownership.

[3] The truster to whom the ownership of the real estate, which is the trust property, is re-transfered upon the termination of the trust under the Trust Act, has the eligibility to file an application for revocation due to the change of circumstances concerning the provisional disposition to which the trustee is the debtor, and the person who acquired the ownership of the real estate in the order of the truster may also file an application for revocation due

[1] Articles 288(1) and 301 of the former Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005) / [2] Articles 1(2), 55, 56, and 60 of the Trust Act, Article 186 of the Civil Act / [3] Articles 288(1) and 301 of the former Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005), Articles 56 and 60 of the Trust Act

[1] Supreme Court Decision 66Da842 delivered on January 31, 1968 (No. 16-1, 25) / [2] Supreme Court Decision 93Da6219 delivered on October 14, 1994 (Gong1994Ha, 2967) 200Ma2997 Delivered on January 27, 2003 (Gong2003Sang, 1035)

Applicant (Attorney Go-won, Counsel for defendant-appellant)

Hyundai Industrial Development Co., Ltd. (Attorneys Kang Shin-dae et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na11065 delivered on September 3, 2004

The judgment of the court of first instance is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined.

1. The assignee of the object of provisional disposition who acquires a real right in the so-called procedure of provisional disposition against which the status of lawsuit is reflected in the procedure of provisional disposition after the execution of provisional disposition shall be entitled to file an application for cancellation of the decision of provisional disposition due to changes in circumstances pursuant to Articles 288(1) and 301 of the former Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005).

In addition, a trust under the Trust Act has a truster transfer a specific property right to a trustee and have the trustee manage and dispose of such property right for the purpose of the trust (Article 1(2) of the Trust Act), and as a result, the ownership of the trust property is transferred to the trustee as an effect of the trust, and as a result, the trustee has the exclusive right to dispose of and manage the trust property (see Supreme Court Order 2000Ma2997, Jan. 27, 2003). When the trust is terminated due to termination of the trust, the trust relationship will lose its effect only in the future, and even if the trustee transfers the ownership of the trust property to the truster who is the right holder to whom the trust property belongs and instead cancels the registration of ownership transfer of the trustee, the truster acquires the ownership based on the trustee's ownership.

Therefore, the truster to whom the ownership of the real estate, which is the trust property, is transferred due to the termination of the trust, has the eligibility to file an application for cancellation due to the change of circumstances concerning the provisional disposition to which the trustee is the debtor, and the truster can also file an application for cancellation due to the change of circumstances concerning the provisional disposition.

2. Review of the facts and records duly admitted by the court below reveals the following facts.

A. The respondent is the creditor of the construction cost against the Sejong High Technical Co., Ltd., the owner of the real estate for the purpose of the provisional disposition in this case (hereinafter the "Seoul High Technical Co., Ltd."), and on March 25, 1999, the Sejong High Technical Co., Ltd. entrusted the above real estate to the Korea Land Trust Co., Ltd. (hereinafter the "Korea Land Trust"), and completed the registration of ownership transfer in the name of the Korea Land Trust on March 31, 1999, the above trust act is a fraudulent act, and the right to claim the cancellation of the ownership transfer registration on April 21, 199 with the right to claim the cancellation of the ownership transfer registration on the ground of the cancellation of the fraudulent trust act against the Korea Land Trust as the preserved right, and the provisional disposition registration was completed on the same day.

B. On March 19, 1994, the deceased non-party 1, who is the father of the applicant, entered into a contract with the Sejongnam-si Office to exchange each real estate listed in the attached Tables 1 and 2 (hereinafter “real estate for exchange”) among the real estate for the purpose of the provisional disposition in this case, which was owned by the deceased, and died during the process of failing to carry out the exchange contract. On May 1, 1999, the deceased non-party 2, the non-party 3, the non-party 4, and the non-party 5 (hereinafter “heirs”) received a provisional disposition against the right to claim the cancellation of ownership transfer registration on the real estate for exchange purpose on May 1, 199 (hereinafter “provisional disposition”). The provisional disposition registration was completed on May 4, 1999.

C. After that, in the case of a provisional disposition of Seoul East Eastern District Court 9Kahap1626 on the provisional disposition of this case, the respondent and the Korea Land Trust, on October 8, 199, performed the procedure for the registration of cancellation of ownership transfer registration due to the trust on the real estate for the purpose of provisional disposition of this case to the respondent, and the respondent performed the procedure for the registration of cancellation of ownership transfer registration of this case within seven days from the date of cancellation of ownership transfer registration.

D. Based on the above judicial reconciliation, the respondent applied for the cancellation registration of ownership transfer registration in the name of land trust in Korea to the Dong-dong District Court of Seoul, Dong-dong District Court registry, but the registrar rejected it on November 29, 199 on the ground that he did not attach the written consent of the heir, who is the right holder of the subsequent provisional disposition.

E. The heir filed a lawsuit against the Sejong High Court and the Korea Land Trust. In the case of the Seoul East Eastern District Court 9Da15925, 20422 (Joint), the above judgment became final and conclusive upon receiving a favorable judgment by filing a request for cancellation registration based on the constructive confession in lieu of the Sejong High Court in order to preserve the claim for ownership transfer registration based on the exchange contract against the Sejong High Court Decision 99Da15925, 2042 (Joint), the above judgment was rendered in favor of all the case in the Seoul High Court Decision 9Na90603, 90610 (Joint), which is the appellate court of the above case, on the ground that the heir filed a claim for ownership transfer registration based on the exchange of the real estate for the purpose of exchange in the future, and the appeal against the Sejong High Court Decision was dismissed as the appeal against this was dismissed.

F. On August 201, 2001, in order to file an application for registration of cancellation of ownership transfer registration in the name of land trust in Korea, heirs requested the respondent to consent and cancel provisional disposition and sent a written application form for cancellation of provisional disposition, but the respondent rejected it.

G. After that, the applicant filed an application for the cancellation of ownership transfer registration in the name of the Korea Land Trust and an application for ownership transfer registration due to the future exchange among the inheritors, on behalf of the inheritors, in order to preserve the right to recover inheritance against the inheritors with respect to the real estate listed in the separate sheet No. 1 (hereinafter “each of the instant real estate”), among the real estate for exchange purposes, on June 14, 2003, the registration of ownership transfer in the name of the above Korea Land Trust was cancelled, and the registration of ownership transfer in the name of the inheritors was completed on the same day, even though the respondent, who is the provisional disposition authority of this case, did not submit a written consent to the heir, etc.

3. Examining the above facts in light of the legal principles as seen earlier, since the title of each real estate of this case was transferred from the Korea Land Trust, which is the trustee, due to the cancellation of the trust, the registration procedure had different methods of cancelling the registration of transfer of ownership from the Korea Land Trust, not from the Korea Land Trust. Therefore, the tax official may file an application for cancellation on the ground of change in the circumstances concerning the provisional disposition decision, which is made by the Korea Land Trust to a person who is transferred the ownership again based on the ownership of the Korea Land Trust as to each real estate of this case, and the applicant who acquired the ownership of each real estate of this case from the tax official official, via the inheritor, is eligible to file an application for cancellation due to the change in the circumstances

Therefore, the court below affirmed the judgment of the court of first instance which rejected the application for provisional disposition due to changes in the applicant's circumstances on the ground that the applicant cannot be deemed a specific successor to the real estate subject to the provisional disposition, which is the provisional disposition debtor, and therefore, the applicant cannot be deemed a general successor to the land trust or the real estate subject to the provisional disposition, which is the provisional disposition debtor. The court below erred by misapprehending the legal principles on the applicant

As long as the eligibility for the applicant of this case is recognized, the court must examine whether the termination of the trust contract between the Sejong Flag and the Korea Land Trust was made lawfully, and whether the cancellation registration of this case, which was not accompanied by the written consent of the respondent, is valid as a registration in conformity with the substantive relations, etc., and determine whether the change in circumstances occurred in the provisional disposition by the respondent. Thus, the judgment of the court below is reversed in accordance with Articles 437, 425 and 418 of the Civil Procedure Act, and the judgment of the court of first instance is revoked in accordance with Articles 437, 425 and 418 of the Civil Procedure Act, and the case is remanded to the court of first instance to deliberate on the merits of the case

Justices Lee Hong-hoon (Presiding Justice)