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(영문) 대법원 1963. 11. 28. 선고 63다633 판결

[부동산소유권이전등기말소][집11(2)민,272]

Main Issues

The status of the successful bidder after the auction procedure based on a mortgage which has been expired is completed.

Summary of Judgment

If the auction procedure becomes final and conclusive prior to the final and conclusive decision of permission of auction and the mortgage is extinguished, the decision of permission of auction becomes final and conclusive on the basis of the extinguished mortgage, and the successful bidder fails to acquire the ownership of the mortgaged real estate even after the registration of ownership transfer after the successful bidder paid the price in full. Therefore, even if the owner did not prevent the progress of the auction procedure by filing an objection or by any other means prior to the decision of permission

[Reference Provisions]

Articles 185 and 187 of the Civil Act

Plaintiff-Appellee

Thailand

Defendant-Appellant

Gangwon-gu Office

Judgment of the lower court

Seoul District Court Decision 62Na634 delivered on August 14, 1963

Text

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

Reasons

The grounds of appeal by Defendant’s attorney are as stated in the separate appellate brief.

We examine the first ground for appeal.

In full view of the facts admitted by the court below as evidence, it cannot be found that the court below's decision that the plaintiff's collateral and auction expenses were fully repaid on August 31, 1959 and the debt to the non-party Korean non-party Korean non-party Korean corporation was extinguished due to the repayment of the debt. Accordingly, it cannot be found that the court below's decision was erroneous, and it is nothing more than merely for the disposition of pre-determination of evidence and fact-finding

We examine the second ground for appeal.

In the case where the decision of approval of auction becomes final and conclusive on the basis of a mortgage actually extinguished, and the successful bidder paid the successful bid price in full and registers the transfer of ownership on the mortgaged real estate, the successful bidder cannot acquire ownership on the mortgaged real estate. Therefore, even if the owner did not prevent the progress of the auction procedure by new establishment or by other methods prior to the decision of approval of auction, it is interpreted that the restoration of ownership can be instituted even if the decision of approval of auction was not made, and according to the facts established by the court below in this case, the plaintiff's mortgage obligation is extinguished on August 31 of the same year prior to September 10, 1959 as the decision of approval of auction became final and conclusive, since the plaintiff's mortgage obligation is fully paid the plaintiff's mortgage obligation and auction cost, and the time of transfer of ownership due to auction is deemed to be when the successful bidder completely paid the auction price like the court below, or the plaintiff's decision of approval of auction becomes final and conclusive on the condition that the successful bidder will not pay the auction price.

Therefore, the appeal is dismissed, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all Justices except for the red net leaves of the Supreme Court judge.

If there is no mortgage, the auction procedure shall not commence, and if the mortgage is extinguished during the process, it shall not continue the auction procedure, but even if so, it shall be a separate issue as to whether the auction procedure commenced automatically becomes null and void, and therefore, it may be deemed that the final nature of the judgment is consistent with the nature of the judgment where the final nature of the judgment should be granted, even if the judgment of the successful bidder's permission decision becomes final and conclusive, because the title of debt is not required in the auction, and the non-existence of a mortgage or the judgment of the existence or non-existence of grounds for cancellation of the auction is conducted by the auction institution itself, and the judgment of the existence or non-existence of a mortgage or other grounds for cancellation of the auction is conducted by the auction institution itself.

If the dynamic safety of the successful bidder is not taken into account for the fixed safety of the owner of the object of auction due to an auction without a real mortgage, it cannot be denied that the state's system causes the uncertainty of the auction procedure as a system and that the fall and the withdrawal of the function of the auction system itself is inevitable.

Furthermore, in the case of this case, the successful bidder cannot acquire ownership of the real estate due to the successful bid on the premise that the decision to grant the successful bid becomes null and void due to the repayment of obligation in the auction procedure, and it is not consistent with the above-mentioned logic, and it is not acceptable in view of the owner's regular stability and the dynamic balance between the successful bidder and the successful bidder's dynamics, as well as the validity of the registration, even if the registration is invalid.

The judge of the Supreme Court (Presiding Judge) of the Red Madern (Presiding Judge) Madern Madern Madern Madern Madon

관련문헌

- 양창수 타인 소유 물건의 경매와 물상보증인의 담보책임 민법연구 . 제2권 (91.09) / 박영사 2005

- 김대정 저당권의 실행 : 경락에 의한 소유권취득의 효력 민법판례해설(2) : 물권법 (92.08) / 경세원 1992

- 여상조 경매개시결정에 대한 이의에 관한 제문제 재판자료 35집 (상) / 법원행정처 1987

- 홍천룡 건설공사에 있어서 제3자의 손해에 대한 사법적 구제 민법학논총(1권) : 후암 곽윤직교수화갑기념 (85.12) / 박영사 1985

- 여훈구 담보권 실행을 위한 경매와 소유권 취득 재판자료 72집 (하) / 법원도서관 1996

- 임준호 집행법상 채무자 지위보호와 관련한 문제점 민사판례연구 17권 / 박영사 1995

- 박우동 경매의 공신적효과 민사재판의 제문제 1권 / 한국사법행정학회 1977

- 이재성 위조된 약속어음이 채무명의가 된 강제집행의 효력 민사재판의 이론과 실제 4권 / 법조문화사 1981

- 송동원 경매절차 진행중의 경매목적 부동산의 멸실, 훼손 재판자료 36집 (하) / 법원행정처 1987

- 이해진 경매절차와 항고사유 (우제)김선박사화갑기념논문집 / 법전출판사 1981

참조조문

- 민법 제185조

- 민법 제187조

원심판결

- 서울고법 1963. 8. 14. 선고 62나634 판결

기타문서

- 기타자료