[건물명도][공2002.6.15.(156),1218]
[1] In the procedure for settling accounts for attribution under the Provisional Registration Security Act, whether ownership is acquired if the other party to the notification and the notification are defective (negative)
[2] Whether the exercise of a security right of provisional registration under the Provisional Registration Security Act, which does not recognize the period of liquidation or the simultaneous performance relationship, is allowed (negative)
[1] According to the Provisional Registration Security Act, in order to acquire ownership of real estate subject to provisional registration for the exercise of security right, a person who has a security interest in provisional registration shall notify an obligor, etc. of the purport that there is no fixed amount of liquidation or liquidation amount after the due date of payment of the claim (Article 3(1)), and an obligor, etc. at this time includes not only the obligor and a person who has pledged his/her property to secure another's property, but also a third acquisitor who has acquired ownership after provisional registration (Article 2 subparag. 2). Therefore, the above notification must be made to all or some of the obligor, and the period of liquidation may not proceed without the above notification. Therefore, even if there is no adequate amount of liquidation or actual amount of liquidation to be paid after the provisional registration is made, even if the principal registration is completed
[2] Articles 3 and 4 of the Provisional Registration Security Act provide the principle of settlement of accounts devolving upon a private execution method of a provisional registration security right, and Articles 12 and 13 provide separate settlement of accounts, such as a claim for auction and a preferential payment claim, by means of the public execution method. Article 4 of the above Act provides that the creditor's obligation to pay liquidation money, the expiration of liquidation period and the principal registration claim, the obligation to pay liquidation money and the ownership transfer registration of real estate and the simultaneous performance relationship of an obligation for delivery, etc. are stipulated in the above Article 4 of the Provisional Registration Security Act, and any special agreement contrary to paragraphs (1) through (3) of the above Article that is unfavorable to the debtor, etc. is not effective (excluding a special agreement made after the expiration of the liquidation period, which does not infringe a third party's rights). Furthermore, in full view of the fact that Article 11 of the Provisional Registration Security Act provides that the debtor, etc. may pay the debt to the creditor until the payment of liquidation money is made, and that the creditor can claim cancellation of transfer registration made for the security right of provisional registration.
[1] Article 2 subparag. 2 and Article 3(1) of the Provisional Registration Security, etc. Act / [2] Articles 3, 4, 11, 12, and 13 of the Provisional Registration Security, etc. Act
[1] Supreme Court Decision 94Da36162 delivered on April 28, 1995 (Gong1995Sang, 1965)
Plaintiff
Defendant
Seoul District Court Decision 2000Na77989 Delivered on November 8, 2001
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. According to the Provisional Registration Security Act (hereinafter referred to as the "Provisional Registration Security Act"), in order to acquire ownership of real estate for the purpose of the exercise of security right, a person who has a provisional registration shall notify an obligor, etc. of the purport that there is no liquidation amount or liquidation amount after the due date of the claim (Article 3(1)). In this case, an obligor, etc. shall not only the obligor and a person who has acquired ownership after the provisional registration of security (Article 2 subparag. 2) but also the third acquisitor who has acquired ownership after the provisional registration of security (Article 2 subparag. 2). The above notification must be made to all or part of the obligor, and the period of liquidation may not proceed without the above notification. Therefore, even if there is no adequate payment of liquidation amount or actual liquidation amount to be paid after the provisional registration, even if the person who has a provisional registration completed the principal registration by law, the ownership cannot be acquired (see Supreme Court Decision 94Da36162 delivered on April 28, 195).
According to the facts and records duly established by the court below, the plaintiff extended money to the non-party 1 on September 11, 1998 and completed the provisional registration of the right to claim transfer of ownership on the housing of this case owned by the non-party 2, a joint and several surety of the non-party 1, as the right holder. After that, the non-party 1 failed to pay the above loan properly, the non-party 1 filed a lawsuit seeking the implementation of the principal registration procedure on the basis of provisional registration on the ground of the fact that the above provisional registration was completed for the purpose of securing the right to conclude the provisional registration, and the judgment in favor of the plaintiff became final and conclusive on January 8, 200, and accordingly, the principal registration on the basis of the above provisional registration was completed on the housing of this case on the 27th of the same month, but the above non-party 2 completed the registration of this case on April 12, 199 before the completion of the above provisional registration, and it cannot be seen that the plaintiff acquired the ownership of this case or the above provisional registration.
In the same purport, the court below’s rejection of the Plaintiff’s assertion that the Plaintiff acquired the ownership of the instant housing after completing the liquidation procedure is justifiable, and there is no error of law such as misunderstanding of legal principles as
2. Articles 3 and 4 of the Provisional Registration Security Act provide for the principle of settlement of accounts devolving upon a private execution method of a provisional registration security right, and Articles 12 and 13 of the same Act provide for separate settlement of accounts, such as a claim for auction and a preferential payment claim, by means of the public execution method. Article 4 of the same Act provides for the creditor's obligation to pay settlement money, the expiration of liquidation period and the principal registration claim, the obligation to pay settlement money, ownership transfer registration of real estate and the simultaneous performance relation of an obligation to deliver debts, and any special agreement contrary to paragraphs (1) through (3) of the same Article provides that any disadvantage to the debtor, etc. shall not be effective (Provided, That the special agreement which was made after the expiration of the liquidation period and which does not infringe a third party's rights shall be excluded). Furthermore, in full view of the fact that Article 11 of the same Act provides that the debtor, etc. may pay the debt amount to the creditor until the liquidation amount is repaid, and that a claim for cancellation of ownership transfer registration made as the object of a security right is not permitted.
In this case, the plaintiff asserts that "the defendant who occupies the house of this case in order to carry out the settlement after disposing of it after acquiring it, has the right to seek its explanation." In light of the above legal principles, the previous method of settlement of accounts cannot be permitted under the Provisional Registration Security Act.
Although the decision of the court below on this point is insufficient, the court below's rejection of the above plaintiff's assertion is eventually justifiable, and there is no error of law such as misunderstanding of legal principles that affected the judgment, contrary to the allegations in the grounds
3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition.
Justices Lee Yong-woo (Presiding Justice)