[소유권이전등기·매매대금][공2002.5.1.(153),862]
In case where a person who bears the price in the real estate auction procedure agrees to obtain a decision of permission for auction in another person's name and the auction is held accordingly, whether the title holder acquires the real estate for the purpose of auction within the country (affirmative)
In case where a person who is responsible for the price in the auction procedure of real estate agrees to obtain a decision of permission of auction in another person's name and thus the successful bidder is held, the person who is in the position of successful bidder in the auction procedure is only the holder of the title, so the ownership of the real estate for auction purpose shall be acquired not only externally but also domestically by the holder of the title, regardless of who is actually responsible for
Article 646-2 of the Civil Procedure Act
Supreme Court Decision 99Da15863, 15870 Decided April 7, 200 (Gong2000Sang, 1138) Supreme Court Decision 2000Do258 Decided September 8, 200 (Gong2000Ha, 2160) Supreme Court Decision 9Da19698 Decided September 25, 2001 (Gong2001Ha, 2315)
Plaintiff (Counterclaim Defendant)
Defendant-Counterclaim Plaintiff (Attorney Jeong-chul et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 99Na52024, 52031 delivered on December 22, 1999
The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).
We examine the grounds of appeal.
1. As to the grounds of appeal Nos. 1, 2, and 4
In full view of the admitted evidence, the court below found that Non-party 1, his father, operated the defendant's surplus funds by lending them to a third party on or around 191, and returned the principal and interest to the defendant, and lent 3.7 million won in total to the non-party 2, including this money and the plaintiff, etc. and their own money, and completed the registration of creation of a maximum amount of 60 million won in the name of the defendant with respect to the real estate in this case in order to secure the claim, and the non-party 3, who is the creditor of the non-party 2, applied for an auction to exercise the right to collateral on the real estate in this case in the name of the defendant, and the auction procedure was conducted. The non-party 1 was determined to obtain a successful bid in the name of the defendant, and the non-party 1 was ordered to deliver the receipts for the real estate in this case to the plaintiff 1 and the non-party 2 in the name of the defendant, and there was no violation of the rules of evidence and the record.
2. As to the third ground for appeal
After finding the facts as above, the court below rejected the defendant's assertion that the sale agreement that the defendant decided to transfer the real estate of this case to the plaintiff by the method of resolving the title trust was null and void because it violated the Act on the Registration of Real Estate under Actual Titleholder's Name. In order to recover the claim against the non-party 1 in the name of the plaintiff, the non-party 1 and the defendant, the title holder of the real estate of this case. Accordingly, the non-party 1 and the defendant completed the registration of transfer of the real estate of this case under the name of the defendant with the successful bid and completed the registration of transfer of ownership under the name of the defendant. This agreement between the plaintiff and the non-party 1 and the defendant collected the entrustment money entrusted by the defendant to the non-party 1 while entrusting the management of the real estate of this case to the non-party 1 and received the entrustment money from the non-party 1 after receiving the successful bid, in light of the purport of the agreement between the plaintiff 1 and the non-party 1 and the defendant's right holder of the real estate of this case.
However, in the real estate auction procedure, where a person who is responsible for the price agreed to obtain a successful bid in the name of another person, and accordingly, the person who is in the position of successful bidder in the auction procedure is only the title holder. Thus, the ownership of the real estate for the purpose of auction should be acquired externally and externally as well as externally regardless of who is the person who actually bears the successful bid price (see, e.g., Supreme Court Decisions 9Da15863, 15870, Apr. 7, 200; 200Do258, Sept. 8, 200). According to the records and the facts acknowledged by the court below, the plaintiff, the defendant and the non-party 1 can be known that the defendant, the mortgagee of the real estate for the purpose of collecting each loan claim as above against the non-party 2, once the defendant, who is the right to collateral security for the real estate of this case, obtained a successful bid in the auction procedure, and therefore, the ownership of the real estate of this case is not a relationship between the plaintiff and the defendant 1.
Therefore, although the court below different reasons, it is justified in the conclusion that rejected the above argument by the defendant, and this part of the grounds for appeal is also rejected.
In addition, the cases cited in the grounds of appeal by the appellant are different from the case of this case, and thus, it cannot be a proper precedent.
3. Therefore, the appeal is dismissed, and all 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 Lee Jae-in (Presiding Justice)