[소유권이전등기말소등][공1998.12.1.(71),2746]
In the event of the death of the debtor or the owner of mortgaged real estate prior to or during the commencement of the procedure in the auction of real estate for the enforcement of the right to collateral security, the validity of the decision of permission of auction made by continuing the procedure against the debtor or owner on the already deceased registry (
Since an auction of real estate to enforce a right to collateral security is conducted in relation to the debtor and owner of the mortgaged real estate indicated in the registration of establishment of the right to collateral security, even if the debtor or owner died before or during the commencement of the procedure, the decision of approval of auction by the auction court cannot be deemed null and void by continuing the procedure in relation to the debtor or owner on the register already deceased, unless the auction court proves the death of the debtor or owner and takes over the auction procedure.
Articles 633 and 640 of the Civil Procedure Act
Supreme Court Order 66Ma66 Dated February 14, 1966 (No. 14-1, 61) 69Ma581 Dated September 23, 1969 (No. 17-3, 124) Supreme Court Order 75Ma338 Dated November 12, 1975 (Gong1976, 8765)
[Defendant-Appellant] Ki-ray and one other (Attorney Kim Jin-jin, Counsel for defendant-appellant)
Lee Jae-i
Hong Mutual Savings and Finance Co., Ltd. (Attorney Jeon Soo-soo, Counsel for the defendant-appellant)
Seoul High Court Decision 97Na2087 delivered on July 15, 1997
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
We examine the grounds of appeal.
According to the reasoning of the judgment of the court below, the court below recognized the fact that the non-party, who is an employee in charge of receiving the decision on commencing the auction of this case, received and delivered the decision to the plaintiff's U.S. to the plaintiff's U.S., through E. S., the above fact-finding by the court below is proper and there is no violation of the rules of evidence as discussed above. There is no reason to discuss this issue.
The auction procedure for exercising a right to collateral security is in progress in relation to the debtor and the owner of the mortgaged real estate indicated in the registration of creation of the right to collateral security. Thus, even if the debtor or owner died before or during the commencement of the procedure, the auction procedure cannot be deemed null and void by continuing the auction procedure in relation to the debtor or owner on the register that died and unless the auction procedure is taken over (see, e.g., Supreme Court Order 65Ma6, Feb. 14, 1966; Order 69Ma581, Sept. 23, 1969; Order 75Ma338, Nov. 12, 1975). Thus, if the auction court delivered the decision to commence the auction procedure at the domicile of Nonparty 1, who had already been the owner, but was living together with him, and the non-party 2, who had received the auction procedure at the same time, was not aware of the death of the non-party 1, and there is no error in the misapprehension of legal principles as to the auction procedure.
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jong-chul (Presiding Justice)