[2] Where the general creditor of the project undertaker applied for the registration of initial ownership of unregistered housing constructed as a housing construction project by subrogation of the project undertaker for the execution, and the registration of initial ownership was not applied for the additional registration under Article 40(3) of the Housing Act, and the seizure was made on the ground that the additional registration was not made, the validity of the seizure (negative)

[3] In a case where a general creditor of a project operator applied for a compulsory auction against unregistered houses which were constructed as a housing construction project and have been occupied by prospective occupants, the validity of the seizure is to be enforced by using the fact that the registration of preservation of ownership and the registration of decision on commencement of auction becomes a registration of entry in the decision on commencement

[4] The case where a person who acquired the right to the subject matter after the commencement of the execution can bring an action of demurrer against the third party

[2] Article 40 (4) of the Housing Act provides that a project undertaker shall apply for the additional registration of the housing constructed as a housing construction project simultaneously with the registration of initial ownership. Since an application for the registration of initial ownership and the additional registration is closely related to the registration of initial ownership, in principle, even if a general creditor applies for the registration of initial ownership on the housing above by subrogation of a project undertaker (the general creditor exercises the right to apply for the registration of initial ownership preservation or the additional registration in subrogation of a project undertaker for the execution) and therefore, it cannot be acknowledged that the seizure of the housing above is against the principle of good faith or the concept of justice, without applying for the additional registration in subrogation of a project undertaker for the registration of initial ownership preservation, and the additional registration is not made under the condition that the initial registration is only registered.

[3] If a court of execution makes an application for a compulsory auction against unregistered real estate and the decision of commencement of auction was made, a Junior Administrative Officer, etc. shall entrust the registrar with the filling-in registration. Accordingly, a registrar shall make ex officio a registration of preservation of ownership, and this shall also apply to a house constructed by a housing construction project. In this case, the same applies to a house constructed by a housing construction project as well as any provision on how to make a supplementary registration of prohibited matters. At the same time, a registration of preservation of ownership has been made for the house constructed by a housing construction project. At the same time, the entry registration of the decision of commencement of auction has been made and no additional registration has been made, and the prospective residents who have been discharged as the object of the original execution cannot be protected. In light of the legislative purport of Article 40 of the Housing Act, the request for the filling-in registration may be deemed as being modified by the parties concerned, and in light of the legislative purport of Article 40 of the Housing Act, if a general creditor against a project operator applied for a compulsory auction against unregistered housing that had been registered as a housing construction project.

[4] A lawsuit of demurrer by a third party is seeking exclusion by asserting the ownership or other right to block the transfer or delivery of the object of execution already commenced, and as such, the right which is the cause of the lawsuit can be set up against the execution creditor. The issue of objection is usually determined after the acquisition and execution of the right. Thus, it is common that the right should exist at the time of execution. However, even if the right is acquired after the execution, if it is particularly possible for the execution creditor to set up against the execution creditor, the right holder may file a lawsuit of demurrer by a third party to seek the exclusion of the execution.

2. The Defendant’s compulsory execution against Nonparty 1 Company based on the executory exemplification of the Seoul Central District Court Decision 98Da221058 delivered on May 4, 199 against Nonparty 1 Company on December 20, 205 against the apartment indicated in the attached list.

3. This Court approves the ruling of the suspension of compulsory execution on September 29, 2006 with respect to the case of applying for the suspension of compulsory execution (2006Kag1278).

4. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

5. Paragraph 3 can be provisionally executed.

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the respective descriptions of evidence and the whole purport of pleading as set forth in Gap's 1 through 6, 9, 11, 14, 16, 18, and 19:

A. On January 8, 1994, the non-party 1 corporation (hereinafter referred to as the "non-party 1 corporation") acquired the ownership of the non-party 10 parcel (the non-party 4 parcel number omitted; hereinafter referred to as the "the site in this case"), and entered into a construction contract with the non-party 2 corporation on May 31, 1995. On June 12, 1995, the non-party 1 corporation obtained the approval of the housing construction project plan for the construction of 453 apartment units (hereinafter referred to as the "the apartment in this case") from the head of Nowon-gu on the site in this case, and obtained the approval of the announcement of the public notice of residence on June 26, 1995.

B. Upon completion of the construction project around April 199 after the non-party 2 started and completed the construction project around 199, the non-party 1 company moved in to the buyer who completed the remainder of the remainder after obtaining approval for provisional use of the apartment of this case from May 15, 1999. However, the non-party 2 company failed to obtain approval for use as a result of the non-party 2's non-party 2's non-party 2's non-party 1's non-party 1's non-party 1's non-party 1's non-party

C. From August 1995 to January 1, 1996, the Plaintiffs: (a) purchased, or subsequently acquired, or succeeded to, the relevant apartment as indicated in the separate sheet (hereinafter “instant apartment”) from Nonparty 1 Company; (b) from those who purchased, or subsequently acquired, the apartment as indicated in the separate sheet (hereinafter “instant apartment”) among the instant apartment; and (c) as Nonparty 1 Company obtained a provisional approval for temporary use from Nonparty 1 Company; and (d) occupied, directly or through lessee, the remainder by the time the company

D. On May 30, 2003 (on December 11, 2003, part of the land of this case), Nonparty 1 added the prohibition items stipulated in Article 32-3(3) of the former Housing Construction Promotion Act to the site of this case. However, on the apartment of this case, registration of preservation of ownership could not be made because approval of use was not obtained as above. However, on November 2003, at least 420 households except the Plaintiff, etc. of this case applied for provisional disposition in order to obtain ownership transfer from Nonparty 1, and the registration of indication was completed on the apartment of this case.

E. Meanwhile, the mutual savings and finance company (Seoul Central District Court Decision 98Da221058) filed a bill gold lawsuit against the non-party 1 company (Seoul Central District Court Decision 98Da221058) and was sentenced to a favorable judgment on May 4, 1999 to pay KRW 1330,68 million and delay damages therefor, and became final and conclusive around that time (the above credit finance company provisionally issued a provisional attachment on the site of this case on December 20, 1997, the previous credit finance company). The defendant received a claim under the above final judgment from the above credit finance company from the above credit finance company and received the transfer of the execution clause on December 8, 2004, and thereafter filed an application for a compulsory auction on September 29, 2005 with the Seoul Northern District Court Decision 2005Ma30153, and accordingly, the registration of the commencement of auction was made at the same time by the above court on December 20, 2005.

F. After that, on September 19, 2006 or November 21, 2006, the plaintiffs received the registration of ownership transfer from the non-party 1 for the apartment of the instant dispute while the instant lawsuit was pending.

2. A related provision;

(a) Article 32-3 (Restriction on Establishment of Mortgage, etc.)

(1) With respect to housing or housing sites constructed by a housing construction project implemented after obtaining approval of a project plan pursuant to the provisions of Article 33 (1), a project operator shall not perform acts falling under any of the following subparagraphs without the consent of a person who is supplied with the relevant housing for the period from the date on which an application for approval of the announcement of invitation of residents is made to 60 days from the date on which a person who is supplied with the relevant housing can apply for the registration of ownership transfer for the relevant housing

1. The act of setting security rights such as mortgage, provisional registration, security rights, etc. on the relevant housing or housing site in order to offer the housing or housing site as security;

2. Acts to set up a right to lease on a deposit basis, superficies, or registered right to lease real estate on the relevant house or site;

3. Acts to dispose of the relevant housing or housing site by means of sale or donation, etc.

(2) "Date on which an application for ownership transfer registration may be filed" in paragraph (1) means the date on which a project proprietor notifies a person to whom the relevant house is supplied.

(3) A project undertaker shall additionally register the ownership registration that the relevant housing construction site shall not be transferred, established a limited real right, seized, seized, provisionally disposed, etc. without the consent of the persons who are supplied with the relevant housing: Provided, That the same shall not apply to cases prescribed by Presidential Decree, such as where the project undertaker is a public institution, such as the State, local government, and the Korea National Housing Corporation, or where the relevant housing site is not owned by

(4) Where any person has acquired the relevant site or established a limited real right, or has seized, seized, provisionally seized, disposed of provisionally, etc. after the date of supplementary registration under paragraph (3), such effect shall be null and void: Provided, That the same shall not apply to cases prescribed by Presidential Decree, including cases where eligible occupants have taken over the relevant site due

B. Article 40 (Restriction on Establishment of Mortgage, etc.) of the current Housing Act (wholly amended by Act No. 6916 of May 29, 2003)

(1) With respect to housing and housing sites constructed by a housing construction project which is implemented after obtaining approval for a project plan under Article 16 (1), a project operator shall not perform any act falling under any of the following subparagraphs without the consent of eligible occupants during the period from 60 days after the date on which eligible occupants can file an application for registration of ownership transfer for the relevant housing and housing sites from the date of application for approval for the announcement of invitation of occupants: Provided, That this shall not apply to cases

1. The act of setting security rights such as mortgage and provisional registration security rights on the relevant housing and housing site;

2. Acts to create a right to lease on a deposit basis, superficies, or registered real estate lease on the relevant housing and housing site;

3. Acts to dispose of the relevant housing or housing site by means of sale or donation, etc.

(2) "Date on which an application for ownership transfer registration may be filed" in paragraph (1) means the date on which a project operator notifies prospective occupants of the occupancy.

(3) In imposing restrictions on the establishment of mortgage, etc. under the provisions of paragraph (1), a project undertaker shall additionally register in the registration of ownership that the property shall not be subject to transfer, establishment of a limited real right, seizure, provisional seizure, provisional disposition, etc. without the consent of eligible occupants: Provided, That the same shall not apply to cases prescribed by Presidential Decree, such as where the project undertaker is a public institution, such as the State, a local government

(4) The additional registration under the provisions of paragraph (3) shall be made simultaneously with an application for approval for the announcement of invitation of residents for a housing construction site, and the registration of ownership preservation for the constructed housing shall be made simultaneously with the registration of ownership preservation for the newly constructed housing. In this case, matters regarding

(5) Where the relevant site or house has been acquired, a limited real right has been established, or it has been subject to seizure, provisional seizure, provisional disposition, etc. after the date of supplementary registration under paragraph (4), such effect shall be null and void: Provided, That the same shall not apply to cases prescribed by Presidential Decree, such as where the prospective occupants have taken over the relevant site due to a non-management of

3. The assertion and judgment

A. Article 32-3 of the former Housing Construction Promotion Act and Article 40 of the current Housing Act allow other general creditors with respect to a project undertaker to seize the housing or the site constructed by the housing construction project at the time of execution of the additional registration as of the time of execution of the additional registration. After that, the effect of seizure, etc. is denied, thereby protecting prospective occupants and, on the other hand, taking into account the interests of general creditors on the other hand, the seizure between the housing constructed by the housing construction project (hereinafter “housing”) as in this case, is valid in principle, since the additional registration is not made for any reason.

B. However, the above supplementary registration can only be made upon the project operator’s application (see Article 1127 of the Registration Rules (see Article 40(3) of the Housing Act). If a project operator intentionally delays an application for additional registration in collusion with a general creditor and caused a general creditor to seize it among them, it violates his/her duties in an unlawful manner, thereby bringing damage to the prospective occupants, and thus, is contrary to the good faith principle or the concept of justice. In such cases, the attachment should be denied.

C. In addition, Article 40(4) of the Housing Act provides that the project undertaker shall apply for the additional registration of the housing at the same time as the registration of initial ownership, and the application for the registration of initial ownership and the additional registration is closely and unreasonably related to the registration of initial ownership (the purpose is to protect prospective occupants as well as to protect prospective occupants). Thus, in principle, in cases where a general creditor applies for the registration of initial ownership on the housing by subrogation of a project undertaker (the general creditor's exercise of the right to apply for registration of initial ownership preservation or the additional registration is not subrogated as the defendant claims, but the general creditor's exercise of the right to apply for registration is not subrogated as to the non-registered housing by subrogation of the project undertaker for the execution, and the seizure of the housing is not applied for the additional registration, and the additional registration is not made under the condition that the registration of initial ownership preservation is only made, and its structure is identical to the above (b) and it is not recognized as a seizure contrary to the good faith or the concept of justice.

D. Meanwhile, when a court of execution makes a decision to commence a compulsory auction upon application for a compulsory auction against unregistered real estate, a junior administrative officer, etc. shall entrust the registrar with the registration of the entry (Article 94 of the Civil Execution Act). Accordingly, a registrar shall make ex officio registration of the preservation of ownership and make the registration of the commencement decision of auction (Article 134 of the Registration of Real Estate Act). The same applies to a house constructed by a housing construction project. In this case, the same applies to this case as in this case since no provision has been provided as to how to register the additional registration of prohibited matters. At the same time, the registration of the commencement decision to commence a compulsory auction has been made, and the registration of the commencement decision to commence a compulsory auction has not been protected. In light of the legislative purport of Article 40 of the Housing Act, the request for the registration of entry may also be deemed as a modified form of the application of the party concerned, and the above registration of the commencement decision to commence a compulsory auction cannot be deemed as having been applied for the aforementioned additional registration and its effect.

E. However, it is sufficient to view that the defendant applied for a compulsory sale by auction and executed the execution by using the fact that the registration of preservation of ownership and the registration of the decision of commencement of auction without additional registration is the registration of the execution of the above final judgment, in light of the fact that the plaintiffs were acquired or succeeded to the unregistered apartment constructed by the housing construction business of the non-party 1, and that the defendant, a general creditor of the non-party 1, is a stock company established for the purpose of bond sale, brokerage, asset management, etc., and that the defendant applied for a compulsory sale of the apartment of the dispute of this case (the defendant stated the apartment of this case in the written application for auction as if the apartment of this case was not sold in lots). Accordingly, it is sufficient to view that the defendant applied for a compulsory sale by auction and executed the apartment of this case by using the fact that the registration of the execution of the above final judgment is the registration of the execution of the above final judgment.

F. In addition, as long as a third party's lawsuit is sought to avoid the transfer or delivery of the ownership or other subject matter of the execution already commenced, the right which is the cause of the lawsuit must be set up against the execution creditor. The issue is usually determined after the acquisition and the execution of the right. Thus, the right should exist at the time of the execution. However, even if the right is acquired after the execution, if it is particularly possible for the execution creditor to set up against the execution creditor, the right holder may bring an objection against the third party to the exclusion of the execution (see Supreme Court Decision 96Da1470 delivered on August 29, 1997). As seen above, as long as the defendant cannot recognize the validity of the compulsory execution (se seizure) against the apartment in the dispute of this case as it is, the plaintiffs who acquired the right after the seizure can seek the exclusion of the above compulsory execution. Thus, the defendant's assertion that there is no standing to the plaintiffs is without merit.

G. Meanwhile, the defendant alleged that the period of additional registration under Article 40 (1) and (2) of the Housing Act was exceeded since May 15, 1999 when the non-party 1 notified that the non-party 1 company should move into the apartment of this case with the approval of provisional use for the apartment of this case after obtaining the approval of provisional use for the apartment of this case. However, the above 60-day period refers to the period during which the business entity shall not engage in a certain act without the consent of the prospective occupants, and the additional registration period is not set (Article 40 (4) of the Housing Act provides that the additional registration of the housing shall be filed simultaneously with the registration of initial ownership), and the above argument by the defendant is without merit.

4. Conclusion

Therefore, in the above purport, the plaintiffs' claims of this case seeking the non-party 1 to refuse the compulsory execution against the apartment of this case on December 20, 2005 based on the executory exemplification of the above final judgment against the non-party 1, which were based on the executory exemplification of the above final judgment, are accepted on the ground of the reasons. Accordingly, the judgment of the court of first instance, which is different from this conclusion, is unfair, and thus the above compulsory execution is revoked, and this court decides to authorize the decision of the suspension of compulsory execution on September 29, 2006 in relation to this case.

[Separate] List: omitted

Judges Lee Jong-Un (Presiding Judge)