The effect of provisional disposition registration in case where the registration of ownership transfer has been made in the name of the non-party while the registration of provisional disposition prohibited from disposal was not made even though the plaintiff had made a provisional registration and principal registration on the real estate for the purpose of securing obligation

Even if the Defendants completed the registration of ownership transfer against the Nonparty after the Plaintiff completed the registration of provisional injunction prohibiting disposal of real estate against the Defendants, insofar as the Plaintiff’s principal and interest obligation against the Defendants is not extinguished at the time of the registration of provisional injunction and until the time of transfer of the Defendants’ real estate, provisional injunction in the Plaintiff’s name has no effect

Article 714 of the Civil Procedure Act

Supreme Court Decision 72Da1271, 1272 delivered on October 13, 1972

Kim Cymology Kim

Kim Jong-soo et al.

Sung-dong Branch of Seoul District Court (78Gahap763, Counsel for defendant-appellant)

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the court below shall be revoked.

The defendant et al. shall implement the procedure for registration of cancellation of ownership transfer registration, which was made by the Seoul District Court No. 4454 on February 8, 1977 with respect to the real estate recorded in the attached list, for the provisional registration of the preservation of the right to claim ownership transfer, and which was made by the head of 73899 on June 19, 1978.

Litigation costs shall be assessed against the defendant, etc. in the first and second instances.

With respect to the real estate stated in the separate sheet that was owned by the plaintiff, the provisional registration for preserving the right to claim transfer, such as the entry in the purport of the claim and the principal registration thereof have been made under the name of the defendant, etc., there is no dispute between the parties concerned, and comprehensively taking account of the entries in Gap evidence 2 (a compromise protocol, Eul evidence 4; hereinafter the same shall apply), Eul evidence 3 (a deposit), Eul evidence 6-1,2 (a deposit) and all purport of pleadings, the plaintiff borrowed from the defendant, etc. on February 7, 197, 15,000 won interest rate of 15,00,000 won from the defendant, etc. on May 7 of the same year, and for the guarantee thereof, the provisional registration under the name of the defendant, etc. was made at the same time until the due date, and if the above loan and interest were not paid to the non-party 17,025,000 won due to the above provisional disposition, it is not recognized that the principal and interest on the above provisional registration was paid to the plaintiff 27.187.

On or after July 4, 1978, the registration of transfer of ownership that was made by the defendant, etc. on or after July 11, 1978 against the defendant, etc. on or after the provisional disposition prohibiting disposal of the above real estate shall be null and void against the plaintiff. Since the loan obligation of the plaintiff against the defendant, etc. was extinguished by a deposit on July 26, 1978, the above provisional registration and this registration shall be cancelled in the name of the defendant, etc. for securing the claim. Thus, even if transferring the above real estate to Kim Won-won and the Choi Jong-si et al. after the provisional disposition prohibiting disposal was made, the transfer of the above real estate by the defendant et al. to the defendant et al. to the defendant et al. to the defendant et al. was later effective until the time of the provisional disposition registration and the transfer of the real estate by the defendant et al., the above provisional disposition in the name of the plaintiff shall not be effective against the act of disposal by the defendant et al. (see Supreme Court Decision 27Da1927, 197, supra).

In addition, from May 28, 1978 to June 16, 1978, prior to the execution of the above security right by the defendant et al., the provisional registration and the principal registration of the above provisional registration in the name of the defendant et al. should be cancelled since the defendant et al. had been absent from the recipient body such as avoiding receiving the above loans even though the defendant et al. had been unable to pay the above loans during the period from May 28, 1978 to June 16, 198.

Therefore, the plaintiff's claim for objection shall be dismissed without merit. The judgment of the court below is just in its conclusion, and the plaintiff's appeal against it is without merit, and it is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Judges Kim Jin-jin (Presiding Judge)