골프회원권에 대한 처분금지가처분과 가압류 간의 경합 시 우열관계 - 대상판결: 대법원 2009. 12. 24. 선고 2008다 10884 판결 -

Abstract

Principle of procedural priority is applied when provisional attachment and injunction on real estate, which has a method of public announcement called registration, is put into competition. However, unlike the real estate, our precedent virtually granted preferred status on injunction when provisional attachment and injunction were put to compete regarding the claim for ownership transfer registration of real estate. In this case, the defendant requested for provisional attachment after the decision of plantiff's request for injunction for prohibition of disposition was dispatched. Thereafter the defendant launched the procedure of attachment and conversion such as transferring provisional attachment to practical attachment before the plantiff completed entry of a change of a holder in the membership through judgement on the merits after the decision of injunction. Afterwards, having completed the entry of a change of a holder through the judgement on the merits, the plantiff raised against the defendant and claimed disapproval of compulsory execution. In other words, when a case has risen regarding if provisional attachment was completed after decision of provisional disposition regarding golf membership was dispatched, same as the case of claim of ownership transfer registration, whether provisional attachment or injunction by applying principle of procedural priority should be prioritized is the problem, the supreme court has come to the judgement that preservative measure such as the provisional attachment implemented after the decision of provisional disposition or the compulsory execution of due date cannot go against a person who claims provisional disposition in the situation where the effect of prohibiting disposition of provisional disposition is opposed. Conclusion of the subject ruling is a verdict that has verified a principle that decides the superiority according to execution order when a preservative measure of a bond such as the golf membership is put to compete. The standard is accurate and predictable which allows the relationship of superiority to be clearly taken care of which therefore, makes the ruling valid. Despite the fact that in order for the transfer to have effect golf membership requires the approval of golf management company, which is a special case, the decision to take theory of procedural priority shows there is a high probability that they will make the same decision regarding general bond since there are no such exceptional cases among general bond that will conclude in a different way.