[임의경매취소결정][공1995.11.1.(1003),3504]
Where a mortgage is established on a right to lease on a deposit basis, a method of executing such mortgage after the expiration of the lease period.
The mortgage established on the right to lease on a deposit basis is implemented by the procedure of real estate auction under Article 724 of the Civil Procedure Act, but because the right to lease on a deposit basis is extinguished upon the expiration of the duration of the right to lease on a deposit basis, the mortgage cannot be executed on the right to lease on a deposit basis itself. In such a case, the right to lease on a deposit basis can be exercised by means of a demand for distribution in the procedure of compulsory execution against the claim for the right to lease on a deposit basis, which can be deemed to exist in lieu of the right to lease on a deposit basis, under Articles 370 and 342 of the Civil Act and Article 733 of the Civil Procedure Act.
Articles 342, 370, and 371 of the Civil Act; Articles 724 and 733 of the Civil Procedure Act
Supreme Court Decision 90Meu24816 delivered on December 26, 1990, Supreme Court Decision 92Ma380 delivered on July 10, 1992, Supreme Court Decision 94Da25728 delivered on November 12, 1994
[Judgment of the court below]
Incheon District Court Order 95Ra41 dated June 2, 1995
The reappeal is dismissed.
The grounds of reappeal are examined.
Examining the record of this case, it is justifiable that the court below viewed that the object of the application for voluntary auction of this case is the remaining condition after the expiry of April 26, 1993, which is the duration of the right to lease on a deposit basis.
A mortgage established on the right to lease on a deposit basis shall be executed by the procedure of real estate auction under Article 724 of the Civil Procedure Act, but since the right to use the right to lease on a deposit basis is extinguished upon the expiration of the term of the right to lease on a deposit basis, the mortgage on the right to lease on a deposit basis itself may no longer be executed. In such a case, the mortgage on the right to lease on a deposit basis, which can be deemed to exist in lieu of the right to lease on a deposit basis subject to the mortgage under Articles 370 and 342 of the Civil Act and Article 733 of the Civil Procedure Act, shall be subject to a collection order or an assignment order for the right to lease on a deposit basis (in this case, a certified copy of the register proving the existence of the mortgage shall be submitted to the executing court
In the same purport, the court below rejected the re-appellant's request for auction of this case, which filed a request for auction of the right to lease on a deposit basis of this case itself, is just, and there is no error of law like the theory
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)