Method of cancelling the registration of provisional disposition based on the decision of provisional disposition

The registration of provisional disposition is an action by the assistance of state power for the preservation of rights under the private law, and the environmental formation of the obligor is effective, so if the same devices are entered into the same, even the creditor can not bring an action against him or her, and it can only be cancelled by the revocation of the decision of provisional disposition by the court of execution or the revocation of execution by the court of execution. Accordingly, the person who acquired the ownership of the object of provisional disposition after the replacement of registration shall file an application with the court of execution for the cancellation of the decision of provisional disposition or the revocation of execution by the court of execution, and shall receive the decision and obtain it, and shall not immediately file a lawsuit for cancellation of the registration of provisional disposition, and this shall also apply

Plaintiff (Counterclaim Defendant) (Attorney Kim Dong-ho, Counsel for the plaintiff-appellant)

Defendant (Counterclaim Plaintiff)

Daegu High Court Decision 74Na1031, 1032 decided September 3, 1975

All of the plaintiff's appeal and the defendant's appeal are dismissed. Of the costs of appeal, the part arising from the plaintiff's appeal shall be borne by the plaintiff, and the part arising from the defendant's appeal

The grounds of appeal by the Plaintiff (Counterclaim Defendant only hereinafter referred to as the Plaintiff) are examined.

According to the reasoning of the judgment of the court, the court below held that the provisional disposition registration based on the provisional disposition decision of the court is not based on the private law, but on the ground that it has an environmental formation effect to control the obligor as a part of the state power for the preservation of rights under the private law, so if an entry based on the provisional disposition decision of the court of execution has been made, the execution cannot be removed independently by the obligee, and it can only be cancelled by the cancellation of the provisional disposition decision of the court of execution or the cancellation of execution, and the person who acquired the ownership of the object of the provisional disposition after the completion of the entry registration of the provisional disposition can not seek cancellation of the provisional disposition registration itself by applying for cancellation of the provisional disposition decision of the court of execution or for cancellation of execution with the certificate of cause after receipt of the provisional disposition decision of the court of execution. The same applies to a case where the principal registration cannot be asserted against the right holder after the provisional registration as in this case, and thus, it is unlawful in the misapprehension of legal principles as stated in the judgment of the court of this case.

The Supreme Court precedents that point out cannot be appropriate for the instant case. The Defendant (hereinafter “Defendant”)’s ground of appeal No. 1 is examined.

However, the witness testimony of the court below is insufficient to recognize that the non-party 1 had offered the ship of this case to the defendant as collateral for the defendant's claim against the non-party 2. The defendant who appears to have failed to prove that there was a violation of the rules of evidence selection by mistake in the selection of evidence and that there was an error in the incomplete hearing in the original judgment. It is not reasonable to argue that the court below returned to the defendant the whole right to the preparation of evidence and the fact-finding by the court below.

The grounds of appeal Nos. 2 and 3 are examined together.

Unlike the purpose stated in the evidence No. 1 of this case, the non-party 3 corporation was established mainly for the export trade in large-scale fishing, and the only property of the corporation is not found by the ship of this case (the court below judged that the non-party 1's testimony is insufficient to be recognized). According to the contents of the evidence No. 1 of this case, the court below determined that the above company is a corporation for the purpose of various businesses, such as the fishery, mining and trade, etc., and even if the above ship disposes of it, it does not have the only number of days of the property, and even if it disposes of it, it does not show the transfer of all or important part of the company's business that requires a resolution of the general meeting of shareholders. In addition, it is not acceptable to accept the defendant's assertion, and it does not constitute an unlawful act of misunderstanding the legal principles as to the important disposal of the company's property.

The paper points out the facts not admitted by the court below or the method of evidence not submitted by the court below and argues that the original judgment is illegal and therefore is groundless.

Therefore, all appeals by the plaintiff and the defendant are dismissed. Of the costs of appeal by the plaintiff, the part arising from the plaintiff's appeal is to be borne by the defendant against each losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Il-hee (Presiding Justice)