Whether the registration of seizure shall be cancelled all due to the successful bid in the discretionary auction procedure.

When comprehensively considering the fact that the registration of seizure has not been cancelled in the voluntary auction procedure, the fact that the distribution has not been made, the court is judged to have proceeded with the auction procedure on the premise that the successful bidder will take over the burden of the registration of seizure

Article 617-2 subparag. 3 of the former Civil Procedure Act

1. The plaintiff's appeal and the plaintiff's claim expanded in the trial are all dismissed.

2. The costs of the lawsuit after the appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 52,834,087 won and the amount calculated by the ratio of 5% per annum from March 15, 2006 to the delivery date of the complaint of this case, and 20% per annum from the next day to the day of full payment (the plaintiff extended the purport of the claim in the first instance trial, and the plaintiff selectively sought a return of unjust enrichment and a claim for damages due to the cause of the claim in the first instance trial, but the plaintiff claimed a return of unjust enrichment with the primary cause of the claim and filed a claim for the ancillary cause of the claim).

1. Basic facts

A. Of the ○○○○○-gun, Gyeonggi-do ○○○○-gun, Gyeonggi-do ○○○○○-do 87-○ Forest 50,547 square meters (hereinafter “instant real estate”), a half of the shares (the shares of Kim○-si hereinafter “instant Kim○”) were jointly owned by one-half of the shares (the shares of the instant Kim○-si hereinafter “instant Kim○-si”). As to the instant Kim○-si’s shares on March 9, 1998, a seizure registration was made on the ground of delinquency in the name of the Yangyang-do and the Dongjak-si ○○-do ○○○-gun ○○

B. On March 31, 1998, 1998, e.g., 4,958.5/50 of the instant real estate, 50,547/50 of the total of 50,547/50 of the instant real estate, 50,547/50 of the total of 20,547/50,315 shares, and 40,630/547 of the remainder of 50,547/50 of the total of 50,547 shares, respectively, was transferred to ○○.

C. On November 27, 1998, 1998, 3,306 shares of 50,547 out of 9,547 shares in the name of 9,917 were transferred to 0,547 in order of 3,306 shares to 0,547 in order of 0,547.

D. In the case of auction for real estate rent (hereinafter, “voluntary auction procedure of this case”), 9 another Doctrine 9270, the Government branch of the Seoul District Court, where the share of Mactri was in progress, the ○○ was awarded a successful bid on July 7, 2001, and the ○○ transferred the entire share to the Plaintiff on January 18, 2003.

E. On July 18, 2001, the execution court entrusted the registration of the ownership transfer of shares in the court of the instant auction and the cancellation of the rights extinguished by the auction procedure, and the registration of the attachment of the Dongjak and Jeonyang Tax Office was not included in the execution subject to the request for the cancellation of the attachment registration of the instant case on July 18, 2001, but the attachment registration of the instant case was not cancelled. On September 18, 2001, the execution court excluded the attachment registration of the instant case from the distribution procedure because it was not recognized as the creditor to receive the distribution from the date of distribution of the instant auction procedure.

F. On November 5, 2004, the co-owner of the instant real estate, received a notice of public auction from the Korea Asset Management Corporation in accordance with its jurisdiction and revoked the said public auction by paying KRW 1,069,870 on November 19, 2004, which was the sum of KRW 1,069,870 on November 19, 2004. On February 7, 2006, the public auction notice was served for the period of jurisdiction, and the said public auction was revoked by paying the sum of KRW 64,660,00 for the sum of KRW 64,60,000 on March 15, 206.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, evidence 4-2 and 5-12, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

(1) Co-owners of the instant real estate paid the Defendant a total of KRW 65,729,870 (i.e., KRW 1,069,870 + KRW 64,660,00 in + KRW 52,834,087 in the name of the Plaintiff (= KRW 65,729,870, KRW 630,547, and KRW 630 in the name of the Plaintiff), among the above money, the Plaintiff paid KRW 52,834,087 in the name of the Plaintiff (i.e., KRW 65,729, KRW 870, KRW 630,50,547).

(2) Although the registration of the seizure of this case should have been cancelled in all of the successful bid in the auction procedure of this case, the registration of the seizure of this case was not cancelled in fact. ① The defendant, around the other hand, did not cancel the registration of the seizure of this case and conducted a public auction procedure by taking a disposition on default on the real estate of this case, and the plaintiff paid 52,834,087 won to the defendant who was not liable to pay for the cancellation of the above public auction without any legal cause. This is the defendant's unjust enrichment. Thus, the defendant is obligated to pay the plaintiff the above unjust enrichment of 52,834,087 won and its delay damages. ② The defendant was negligent in failing to request the cancellation of the registration of this case in the auction procedure of this case. Accordingly, the plaintiff suffered damages from the plaintiff's payment of the above 52,834,087 won to the defendant.

B. Determination

(1) Where the ownership of the object of provisional seizure is transferred to a third party after the senior provisional seizure is registered, and the creditor of the third party thereafter requested an auction, the creditor of the provisional seizure may receive dividends in the sale procedure to the extent of the claim amount at the time of the decision of provisional seizure out of the proceeds of the object of provisional seizure. In this case, the registration of provisional seizure with the previous owner as the debtor may be subject to a request for cancellation of provisional seizure. However, under the premise that the successful bidder takes over the burden of the registration of provisional seizure with the previous owner as the debtor, the above provisional seizure creditor may be excluded from the distribution procedure and proceed with the sale procedure on the premise that the former owner takes over the burden of the registration of provisional seizure. Thus, if the successful bidder takes over the above provisional seizure registration on the premise that the above provisional seizure registration is carried out, the validity of the above provisional seizure shall not be terminated. Therefore, the validity of the above provisional seizure cannot be determined by the court of execution merely because the sale procedure was carried out on the real estate with the previous owner as the debtor.

(2) In light of the above legal principles, as to whether the registration of the attachment of this case was to have been cancelled in the auction procedure of this case, (1) the registration of the attachment of this case was not cancelled in the auction procedure of this case as seen earlier, (2) where the ownership of the object of provisional attachment after the registration of senior provisional attachment of real estate was transferred to a third party, and the creditor of the third party was sold after the registration of provisional attachment of this case, it was most practical practice at the time that the registration of provisional attachment was not requested for cancellation of provisional attachment, and (3) in the auction procedure of this case, it is determined that the auction court was conducting the auction procedure on the premise that the successful bidder would have taken over the burden of the registration of the attachment of this case in the auction procedure of this case. Thus, the plaintiff's claim on the premise that the registration of the attachment of

(3) Meanwhile, comprehensively taking account of the overall purport of arguments as indicated in the evidence No. 4-2, 4, 7, and 14, Gap evidence No. 4-2, 5-2, 4, 7, and 14, the following facts: (a) there was no indication of the condition that successful bidders take over the registration of the attachment of this case; (b) there was no indication of the tender documentation (Evidence No. 5-4, 7) in the tender procedure of this case that the registration of the attachment of this case was not cancelled; and (c) the fact that the ○○ requested to cancel the registration of the attachment of this case after being awarded the bid of this case; (d) it was not acknowledged that the ownership of the object of the provisional attachment after the registration of the provisional attachment of this case was transferred to a third party; and (d) it was not acknowledged that there was no physical burden that the successful bidders would have taken over the registration of the provisional attachment of this case at the time when a third party purchaser's request for auction; and (c) it was not determined by the original sale specification of the auction of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just as it is in conclusion, and it is decided to dismiss all the plaintiff's claim extended in the plaintiff's appeal and the trial court. It is so decided as per Disposition.