부동산 점유이전금지가처분 집행에 관한 문제 - 점유의 연속적 승계 및 침탈을 중심으로 -

It is very important to fix the parties concerned through a petition for preliminary injunction against occupation transfer of a real estate prior to an eviction suit. Even if a lawsuit is filed without a procedure of preliminary injunction against occupation transfer and the suit is decided in favor against the existing occupant regardless of the change of occupants prior to conclusion of pleadings, the new occupant would not apply to res judicata. Thus, it is necessary to file a lawsuit against the new occupant from the beginning. In addition, under the current law, the debtor for the preliminary injunction against transfer of possession must be specified and the debtor be consistent with the occupant. However, if the debtor has already transferred possession of the real estate to another person or changed the name of possession prior to the preliminary injunction execution, a problem arises in that the new occupant or the occupied nominee must be given the execution statement and be executed again. This study is to examine the reasons for which the preliminary injunction against occupation transfer may become unenforceable in the execution procedure. Also, it is aimed at presenting an alternative by analyzing the Supreme Court precedents on fixation of party in preliminary injunction procedure and the succession of the debtor, comparing the changes in the occupation and the opinions and theories on creditor in the case law.