근저당권말소
The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As regards the interruption of prescription by an attachment, the interruption of prescription by an attachment shall continue until the compulsory execution procedure is completed, and if the prescription is interrupted, the prescription which has already lapsed until the interruption shall not be included therein, but the new prescription period shall run from the time when the cause of interruption ceases
(Article 178(1) of the Civil Act. The court below acknowledged that D, on October 22, 1991, lent 40 million won to C on June 22, 1991, and completed the registration of creation of a collateral security right with respect to the real estate of this case owned by the plaintiff in order to secure this, the registration of creation of a collateral security right of the maximum debt amount of 60 million won was completed with respect to the real estate of this case, upon D's application, the registration of the initial decision of commencement of voluntary auction was completed on September 24, 1993. The extinctive prescription of the debt of this case was interrupted by seizure by the registration of the entry of the decision of commencement of auction, and as long as the registration of the entry of the decision of commencement of the above auction has not been cancelled, the interruption of prescription becomes effective, and rejected the plaintiff's assertion that the debt of this case was extinguished by prescription.
However, according to the records, it can be known that the above voluntary auction procedure by D upon D's request has been closed on May 16, 1994 and the record has been destroyed as the expiration of the preservation period. Thus, in light of the above legal principles, the interruption of prescription by the seizure of the above decision on commencement of auction continues until May 16, 1994 when the compulsory execution procedure concerning the real estate of this case has been completed, and the new prescription period shall begin to run from that time due to the termination of the cause of suspension.
Article 651 of the former Civil Procedure Act (wholly amended by Act No. 6626 of Jan. 26, 2002) (amended by Act No. 6626 of Jan. 26, 2002) is concluded without permission for auction