Whether a third party’s objection raised against the provisional attachment order after the original copy of the decision on provisional attachment against the claim for transfer registration of ownership was served on the third party obligor is legitimate (negative)

A lawsuit of demurrer by a third party is a lawsuit seeking the exclusion of specific execution against an object of execution, and there is no benefit to file the lawsuit after the execution is completed, and provisional seizure against the claim of ownership transfer registration shall be completed by serving the original copy of the decision to the third party with the original copy of the decision on provisional seizure. Therefore, the lawsuit of objection by a third party raised after the provisional seizure order is unlawful as there is no

[1] Article 509 of the Civil Procedure Act

Right of Escort

National Bank of Korea (Attorney Kim Yong-am, Counsel for defendant-appellee)

1. The plaintiff's lawsuit of this case is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant's decision of the Seoul District Court's 98Kadan13483 on May 1, 1998 that the provisional seizure against the right to a site in the attached list shall not be enforced by the defendant against the right to a site in the attached list.

1. Fact-related relationship;

The following facts are not disputed between the parties:

A. The non-party Kim Jong-cheon, as a member of the non-party Handong Housing Association, was to purchase the real estate listed in the separate sheet. On September 25, 1997, the Plaintiff purchased the ownership of the above real estate which was not completed at the time from Kim Jong-cheon, and paid the purchase price in full to the above Kim Jong-cheon until November 10 of the same year.

B. On March 198, in order to preserve the right to claim the transfer registration of ownership of the above real estate based on the above contract for Kim Jongcheon-cheon, the plaintiff applied to the Seoul District Court for a provisional injunction against the sale of the above real estate on the 16th of the same month, which was accepted by the above court (hereinafter referred to as "provisional injunction"), and the above court applied to the Seoul District Court for a provisional injunction against disposal of the above real estate on September of the same year, which was after the completion of the above real estate, and notified the provisional injunction against disposal of the above real estate by accepting it on the 14th of the same month, and the plaintiff made a provisional injunction against disposal on September 16, 1998 only on the part of the building except the site ownership of the above real estate on September 16, 1998 (the provisional attachment mentioned in paragraph (3) has not been registered for ownership preservation).

C.On the other hand, around April 198, the defendant applied for a provisional seizure on the right to a site in the separate sheet against the above Kim Jongcheon-cheon's Seoul District Court's Dong Branch for the preservation of loan claims against the above Kim Jong-cheon, the above court accepted the above application and notified the provisional seizure order (hereinafter referred to as the "provisional seizure of this case"), and around that time, the above decision was served on the above non-party association, the third debtor, etc.

D. On March 11, 1999, the Plaintiff filed a lawsuit against the above Kimcheon for the execution of the procedure for the transfer of ownership to the above Kimcheon, and the above court accepted the Plaintiff’s claim in the decision of 98Gadan297949 delivered on March 11, 199. The above decision became final and conclusive on April 29 of the same year, and the Plaintiff completed the registration of ownership transfer in the name of the Plaintiff on the part of the above real estate except the site ownership.

2. The plaintiff's ground for claim

As the cause of the claim of this case, the provisional attachment of this case was executed after the execution of the provisional attachment of this case, and as long as the plaintiff purchased the right to purchase the land subject to the provisional attachment of this case or the right to claim ownership transfer registration before the execution of the provisional attachment of this case and received the provisional disposition of this case, the plaintiff filed a non-execution of the provisional attachment of this case by asserting that the execution of the provisional attachment of this case should be excluded (the purport of the claim stated in the complaint is to seek the cancellation of the provisional attachment of this case, but the third party's lawsuit seeking the exclusion of the execution of the Health Unit in light of the description

3. Determination

First, we examine the legitimacy of a lawsuit ex officio, and the lawsuit of objection by a third party is a lawsuit seeking the exclusion of specific enforcement acts against the object of execution, and there is no benefit to file the lawsuit after the execution has been completed. In the case of provisional seizure against the right to claim ownership transfer registration, such as the provisional seizure of this case, the execution of provisional seizure shall be completed by delivering the decision original to the third debtor. Thus, as long as the provisional seizure of this case is served to the third debtor and its execution has been completed, the lawsuit of this case shall be without benefit.

In addition, the provisional seizure and provisional disposition can be concurrent unless their contents conflict or conflict with each other, and they shall be effective. The provisional seizure in this case shall not be deemed to exclude or infringe the effects of the provisional disposition in this case. Thus, the provisional seizure in this case shall continue to exist in conjunction with the provisional disposition in this case. At the time of the provisional seizure in this case, the plaintiff only has the right to claim the registration of transfer of the right to the site in this case under the above sales contract, and there was no registration of transfer in the plaintiff's name. Thus, such right to claim the registration of transfer cannot be set up against the defendant who is the execution creditor of the provisional seizure. Thus, the plaintiff cannot claim the refusal of execution of the provisional seizure in this case on the basis of the right to claim the registration of transfer of the above right to the site in this case, unless the plaintiff extinguishings the right to preserve the provisional seizure in this case by subrogation of the above Kimcheon-cheon's loan to the defendant (see, e.g., Supreme Court Decisions 79Da1223, Jan. 29, 1980).

Therefore, the plaintiff's lawsuit of this case shall be dismissed, and it is so decided as per Disposition.