채권에 대한 처분금지가처분과 가압류의 우열관계 - 대법원 2014. 6. 26. 선고 2012다116260 판결을 중심으로 -

Abstract

The decision is based on the Judgement of Supreme Court 2009. 12. 24. 6. Sentence, Supreme Court Judgement 2008Da10884 on the golf membership rights. According to the judgment, in cases where a provisional disposition decision of monetary claim has been served upon a garnishee, and a provisional disposition obligee has been awarded a final and binding judgment in the suit on the merits of the case, The subsequent provisional seizure or compulsory execution could not be duly asserted against the provisional disposition creditor. As a result the plaintiff who is the subsequent provisional seizure obligee can not resist the defendant who is the precedent provisional disposition creditor. In the case of conflicts between provisional disposition of monetary claims and provisional seizure, it has been mentioned that prior provisional disposition does not have precedence over subsequent provisional seizure, based on judicial precedents on the preliminary injunction of the right to request title transfer registration. Even after the precedents on golf membership rights did not reveal superior or inferior relations. To the contrary, this judgment explicitly declared in that case the preceding provisional disposition creditor received a final judgment in the suit, the subsequent provisional seizure obligee can not compete against the preceding provisional disposition holder, consequently it clarified its superiority or inferior relation. This judgment Has an important meaning in view of the fact that clarified if the provisional seizure of the monetary claim conflicts with the provisional disposition, the superiority or inferiority must be determined according to the order of the execution of the provisional seizure and provisional disposition. It can be said that the conclusion is reasonable. However, regarding the right to claim ownership transfer registration, it seems that it is based on the premise that the subsequent seizure holder takes precedence. However, in addition to monetary claims, including the right to request transfer of ownership transfer, in the event of provisional seizure and provisional disposition competing, it is reasonable to judge uniformly according to the order of execution.