[부동산경매취소기각][공1997.3.1.(29),593]
In the event that a principal registration based on provisional registration has been completed on the basis of a decision to grant a successful bid in an auction procedure to enforce the second-class collateral with respect to any real estate for which a provisional registration to preserve the right to claim ownership transfer has been made between the first and second-class collateral security, but the decision to grant a successful bid becomes final and the successful bid price has been paid in full,
Even if the principal registration of ownership transfer based on provisional registration, which takes precedence over the right to claim a transfer of ownership, has been completed with respect to any real estate for which the provisional registration of preservation of the right to claim a transfer of ownership has been made between the first and the second priority collective security, before the decision to permit the successful tender was pronounced in the auction procedure implemented to enforce the second priority collective security, the effect of the successful tender is no longer possible, as long as the decision to permit the successful tender is finalized and the successful bidder paid the successful tender price in full. As such, the effect of the first priority collective security, which existed until that time, has ceased to exist due to the successful bid, and as such, the provisional registration and the application for cancellation of the auction registration of the title holder based thereon, which was filed after the full payment
Articles 608(2), 613(1), 633, and 661(1) of the Civil Procedure Act
Supreme Court Decision 87Ma1169 Decided April 28, 198 (Gong1988, 908) Supreme Court Decision 91Da41996 Decided April 14, 1992 (Gong1992, 1579) Supreme Court Decision 93Da52853 Decided April 12, 1994 (Gong1994, 1426)
Park Jong-sung (Attorney Jin-hun, Counsel for the plaintiff-appellant)
Seoul District Court Order 95Ra1390 dated January 25, 1996
The reappeal is dismissed.
The grounds of reappeal are examined.
1. According to the record, on November 16, 192, the Re-Appellant's real estate owned in this case was registered under the name of Korea Housing Bank No. 1 in the name of creditor No. 1, 1992, and under the name of creditor No. 1, Apr. 14, 1993, which was creditor No. 2, the establishment registration of mortgage in the name of creditor No. 1, 1993, and the registration of provisional attachment in the name of Busan Bank Co., Ltd. on Dec. 21, 1992, and the right to claim transfer of ownership was registered under the name of right holder No. 1, Dec. 28, 1992. The auction court of this case rejected the above request for auction cancellation on the ground that the above request for auction cancellation on Oct. 22, 1994 after the auction auction of this case had been made under the above provisional registration No. 1, 195, and it was unlawful for the court of auction cancellation on May 1, 19, 1995.
2. According to the above facts, even if the principal registration of transfer of ownership based on the provisional registration in the name of the re-appellant, prior to the pronouncement of the decision to permit the successful bid in the auction procedure in this case for the execution of the above right to collateral security industry, was completed, the successful bid cannot be asserted as long as the decision to permit the successful bid is finalized and the above scars, the successful bidder, paid the successful bid price in full. In order of priority, the above right to collateral security in the Housing and Commercial Bank, which had been effective until the time of the successful bid, is extinguished due to the above successful bid, and thus the validity of the above provisional registration and the principal registration based on the above provisional registration, which were subordinate, become null and void. Thus, the conclusion of the order of the court below that maintained the decision of the auction court that dismissed the above application to revoke the successful bid price
3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ahn Yong-sik (Presiding Justice)