[소유권이전등기말소등기절차이행등][공2008상,23]
In a case where any real estate for which provisional registration of preservation of the right to claim for ownership transfer registration has been made between the establishment registration near the first and second provisional registration, is sold at the auction procedure to enforce the first priority right to collateral security, and the price therefor has been paid in full, whether each of the above registrations is subject to the entrustment for cancellation (affirmative), and whether registration is necessary to register the effect of change in real rights arising therefrom (negative), and whether there is a legal interest to seek for cancellation of each of the above registrations when the sale price has been paid in full (negative)
With respect to any real estate for which provisional registration of preservation of the right to request ownership transfer registration has been made between the establishment registration near the first and second priority mortgages, if a decision of permission for sale is finalized in the auction procedure to enforce the first priority mortgage and the proceeds of sale are paid in full, all the above provisional registration and the right to the principal registration based thereon shall be extinguished. Each of these registrations shall be subject to entrustment of cancellation as it constitutes entry of the burden of real estate not acquired by the purchaser provided for in Article 144(1)2 of the Civil Execution Act. The effect of change in real right due to the final decision of permission for sale shall be made regardless of its registration. In addition, if a decision of permission for sale of real estate for the provisional registration of preservation of the right to request ownership transfer registration and the procedure for cancellation of the principal registration based thereon becomes final and conclusive, and the right to each of the above registrations becomes extinguished in full, and if it is no longer possible to cancel the registration in parallel, there is no legal interest to seek cancellation of each of the above registrations.
Articles 91 and 144(1)2 of the Civil Execution Act, Article 187 of the Civil Act
Supreme Court Decision 87Ma1169 Decided April 28, 1988 (Gong1988, 908) Supreme Court Decision 88Meu6846 Decided July 25, 1989 (Gong1989, 1282)
[Judgment of the court below]
Defendant (Attorney Jeong-hee, Counsel for the defendant-appellant)
Seoul High Court Decision 2006Na44250 decided July 25, 2007
The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.
The grounds of appeal are examined.
Where a decision on permission for sale and the principal registration based on the provisional registration are confirmed and the sale price is paid in full with respect to any real estate, the provisional registration and the right to the principal registration based on the provisional registration are all extinguished, with respect to which the provisional registration of preservation of the right to claim for ownership transfer registration has been made between the establishment of the first and second priority mortgage; and each registration constitutes entry as to the burden of real estate not acquired by the purchaser provided for in Article 144(1)2 of the Civil Execution Act, and thus becomes subject to entrustment for cancellation; and the effect of any change in real right due to the determination of permission for sale is made regardless of the registration (see Supreme Court Order 87Ma169, Apr. 28, 198; Supreme Court Decision 86Meu6846, Jul. 25, 1989, etc.).
In addition, there is no legal interest to seek cancellation of each of the above registrations if the decision of permission for sale is finalized and the sale price is fully paid and each of the above registrations is extinguished, and if the above registrations are subject to the entrustment of cancellation and the cancellation is inevitable, it is no longer possible to seek cancellation of the above registrations.
According to the records, with respect to the provisional registration of this case where the plaintiff sought the execution of the procedure for cancellation registration against the defendant and each real estate of this case where the principal registration based thereon has been completed, the decision of permission for sale has become final and conclusive during the original trial and the proceeds of sale have been paid in full. Accordingly, all of the defendant's rights on each of the above registrations have extinguished, and each of the above registrations has to be cancelled in the future as a subject of the entrustment of cancellation, and thus, the lawsuit of this case seeking cancellation
Nevertheless, the court below did not err by misapprehending the legal principles as to the interest in a lawsuit, thereby affecting the conclusion of the judgment. Therefore, the ground of appeal pointing this out has merit.
Therefore, the judgment of the court below is reversed without examining the remaining grounds of appeal by the defendant. Since this case is sufficient to directly judge this case, the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed, and the total costs of the lawsuit are to be borne by the plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Hwang-sik (Presiding Justice)