[경매개시결정에대한이의][집22(3)민,58;공1974.12.15.(502) 8104]
Whether or not the third party purchaser has limited to the one who acquired the ownership, etc. prior to the commencement of auction or the commencement of auction, who may claim the extinction of a mortgage pursuant to the provisions of Article 364 of the Civil Act.
A third purchaser who may claim a extinction of a mortgage pursuant to the provisions of Article 364 of the Civil Act shall not apply to the person who has acquired the ownership of a superficies or chonsegwon prior to a request for auction or prior to the commencement of auction.
Article 364 of the Civil Act
[Judgment of the court below]
Seoul Central District Court Order 74Ra18 Dated August 23, 1974
The original decision is reversed and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.
As to the ground of reappeal by the re-appellant No. 1
According to the reasoning of the original decision, according to the provisions of Article 364 of the Civil Act, a third party who has acquired ownership, superficies or chonsegwon on mortgaged real property can make a claim for the extinguishment of the mortgage by repaying to the mortgagee the claims secured by such real property and claiming for the extinguishment of the mortgage. However, it is reasonable to view that the third party is limited to a person who can oppose the mortgagee with the right by acquiring the right, as the appellant has decided to commence the auction as in the case of the appeal, and who has acquired the right after the seizure became effective, he cannot be a third party purchaser under Article 364 of the Civil Act, even though he would be a party under the Auction Act upon reporting the right to the auction court. Therefore, the appellant is the person who has succeeded to the status of the non-party who is the collateral security, and therefore, he cannot make a claim for the extinguishment of the right to collateral security unless the above non-party fails
However, the "third party" under Article 364 of the Civil Code is limited to those who have acquired rights and can oppose the mortgagee, and the reason is clearly explained, but the provisions of Article 364 of the current Civil Code do not recognize the legal fiction of the Gu Resident Law and the third party who has acquired ownership, superficies or chonsegwon with respect to mortgaged real estate can make a claim for the extinction of mortgage. The re-appellant who acquired ownership through the registration of ownership transfer on this real estate is the third party who has acquired ownership and can make a claim for the extinction of mortgage and the third party who can make a claim for the extinguishment of mortgage. Under the provisions on the legal fiction of the Gu Resident Law, the third party purchaser can make a notification of the legal fiction within a certain period from the date of receipt of notification of the execution of mortgage by the mortgagee, and it is necessary for the third party purchaser to make a claim for an increase of auction, but it is necessary for the third party to make a claim for an auction under the Civil Code No. 1600, the third party purchaser to whom the auction procedure can be established.
Therefore, it is so decided as per Disposition by the assent of all participating judges pursuant to Articles 413(2) and 406 of the Civil Procedure Act.
Justices Rin- Port (Presiding Justice)