The preservation of the right to request housing life and the legality of the provisional disposition

Since the application for provisional disposition to preserve the right to claim for the name of a house is also related to the dispute, if there is an explanation about the existence of the right to claim for preservation and the necessity for preservation, it is possible to order a provisional disposition by the method or by other methods stipulated in Article 758 (2) of the Civil Procedure Act, regardless of the purport of the party's application. However, the purport of ordering the creditor or a third party to keep the house is that it is executed before the judgment on the merits becomes final and conclusive, but it is not allowed because it exceeds the purpose

Articles 755 and 758 of the Civil Procedure Act

National Postal Law Representative and the Minister of Justice of the Republic of Korea shall be a full-time or full-time officer of a litigation performer who is a single-speak

Hare Hare

Park leapon

Seoul District Court of the first instance, the Seoul High Court of the second instance, and the Seoul High Court of the second instance 54 civil defense 458 delivered on January 18, 1954

The original judgment shall be reversed. The judgment of the first instance shall be revoked. The contents of the provisional disposition on this case shall be modified as follows:

In Jung-gu Seoul Metropolitan Government, 3 has occupied each part of the attached to the judgment of the first instance court (A) (A soldier) (B) of the respondent Hagu Hong from among the part of the 104 ground year and the part of the 3rd floor store and the part of the 1st floor of the 3rd floor store, and has a sallon belonging to the Seoul District Court in custody.

Provided, That the possession of each machine can be kept in the respondent, etc. on the condition that the phenomenon of the object being collected is not changed.

Litigation costs shall be borne by the respondent, etc.

The gist of the judgment of the court below is that the plaintiff representative's ground of appeal is that the plaintiff representative's appeal is to seek the realization of the right to request the use of the name of the property prior to the acquisition of the title of the original obligation, which is the subject of the lawsuit, and it is obvious that the applicant for the first time to preserve the original obligation. Thus, the decision of accepting the difference and the judgment of the court of first instance should be dismissed without any need to be determined. However, the judgment of the court of first instance is unfair, and the judgment of the court of first instance was revoked. However, the law of provisional disposition is not only strict but also it is done in the judgment of the court of first instance as to the case, and it is done at the same time by filing a lawsuit on the merits and concurrent disposition. If the defendant acquired the ownership by a false report in order to acquire the property belonging to the original case but it is impossible to confirm it, the acquisition of ownership becomes void, and the Minister of Justice is the property belonging to the non-party 1, and the defendant et al. has leased the property belonging to the original property disposition, and thus it is obvious.

Article 755 of the Civil Procedure Act provides that provisional disposition with respect to a dispute shall be made when one of the parties' rights cannot be exercised or it is highly difficult to execute such provisional disposition due to a change in the current condition. It is evident that provisional disposition with respect to the dispute is made in order to preserve the execution in a case where the creditors interfere with future execution, such as a change in the current condition, etc. regarding the right to claim payment. Therefore, the provisional disposition court shall order provisional disposition if there is a vindication as to the existence of the right to claim provisional disposition, which is the requirement for protection of the right, in other words, that the existence of the reason for provisional disposition, should be examined and it is not possible to start the purpose of preserving the right of the claimant. Since provisional disposition for preserving the right to request housing name is also related to the dispute, so there is no error of law by ordering the obligee to change the original judgment or by any other method provided for in Article 758 (2) of the Civil Procedure Act or by any other method, which is the purpose of preserving the right of the obligee or any third party's right to request to preserve the original judgment.

It is so decided as per Disposition by Articles 408, 756, 745, and 95, and 89 of the Civil Procedure Act.

Justices Kim Dong-dong (Presiding Justice) Acting Justice Kim Jae-ho on the present allocation of Kim Jong-dong (Presiding Justice)