소유권이전등기청구권에 대한 가압류와 가처분의 경합

Abstract

This paper examines what discussed and suggested concerning the competition of provisional attachment and injunction about the right to registration of ownership transfer. Precedents adopted theory by according to priority of execution in the competition of provisional attachment and injunction about real estate. But, Precedents adopted theory of provisional attachment priority in the competition of provisional attachment and injunction about the right to registration of ownership transfer. These attitudes of precedents are not convincing. Scholars and Judges are much discussed that the problems of competition to provisional attachment and injunction about the right to registration of ownership transfer. The first opinion is theory of provisional attachment priority. This theory claims that Civil Execution Act was given a stand alone collection right to provisional attachment. But, Injunction was not given a stand alone collection right, only has legal position of general creditor. Therefore, Injunction creditors are only protected by Obligee's Right of Subrogation to the Obligor as general creditors. The second opinion is theory of execution priority. This theory claims that Civil Law and Civil Execution Act allow not method of public announcement about the right to registration of ownership transfer. In the end, Courts have to decide the ranking of provisional attachment and injunction through Civil Law §450. I insists theory of execution priority. The reasons, Injunction creditors keeps ahead of provisional attachment creditors in the real estate contract.