[1] Standard for determining whether matters registered to commission the cancellation of registration pursuant to Article 144(1)2 of the Civil Execution Act are “written entry as to the burden of real estate not acquired by a purchaser”, and in a case where there are grounds for invalidation or cancellation of registered matters, whether the purchaser may seek a request for cancellation by means of “Objection against the Disposition by the Junior Administrative Officer, etc. of the Civil Execution Act” or “Objection against the Disposition by the Junior Administrative Officer, etc. of the Civil Procedure

[2] Whether the registration of chonsegwon completed before the commencement of the period of chonsegwon is presumed to be valid (affirmative in principle), and the standard for determining the priority of chonsegwon (=registered order of priority)

[1] If a purchaser pays the proceeds from the auction of real estate, the junior administrative officer, etc. shall commission the cancellation of entry as to the burden of real estate not acquired by the purchaser pursuant to Article 144(1)2 of the Civil Execution Act. In such cases, whether the entry as to the burden of real estate not acquired by the purchaser is determined according to the registration record and the auction record. Even if there are grounds for invalidation or cancellation of the registered matters, the purchaser can only contest the validity of the registration through a lawsuit, and may not seek an entrustment of cancellation pursuant to Article 144(1) of the Civil Execution Act, and cannot seek an objection against the disposition of the junior administrative officer, etc. of a court, etc.

[2] A person having a right to lease on a deposit basis shall pay the deposit money and use it for profit in accordance with the purpose of the real estate, and have the right to obtain a preferential repayment of the deposit money for the whole real estate from junior creditors or other creditors (Article 303(1) of the Civil Act). In light of the fact that the right to lease on a deposit basis has both the nature of the right to lease on a deposit basis and the nature of the right to lease on a deposit basis before the commencement of the duration of the right to lease on a deposit basis, it is presumed valid unless there are special circumstances. Meanwhile, Article 4(1) of the Registration of Real Estate Act provides that “The priority order of the registered right to the same real estate shall be governed by the order of registration, unless otherwise provided in Acts.”

[1] Article 144(1)2 of the Civil Execution Act / [2] Article 303(1) of the Civil Act, Article 4(1) of the Registration of Real Estate Act

[2] Supreme Court Decision 2008Da67217 Decided January 30, 2009

[Judgment of the court below]

Seoul Central District Court Order 2017Ra516 dated July 10, 2017

The reappeal is dismissed.

The grounds of reappeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined.

1. If a purchaser pays the proceeds from the auction of real estate, the junior administrative officer, etc. of a court shall commission the cancellation of entry as to the burden of real estate that the purchaser has not taken over pursuant to Article 144(1)2 of the Civil Execution Act. In such cases, whether the entry as to the burden of real estate that the purchaser has not taken over is determined in accordance with the registration record and the auction record. Even if there are grounds for invalidation or cancellation of the registered matters, the purchaser can only contest the validity of the registration through a lawsuit, and may not seek an entrustment of cancellation pursuant to Article 144(1) of the Civil Execution Act, and may not seek an objection against the disposition of the junior administrative officer

Article 303(1) of the Civil Act provides that “A person having chonsegwon shall pay a deposit for lease on a deposit basis and use it and make profits therefrom in accordance with the purpose of the real estate and shall have the right to obtain a preferential repayment of the deposit for lease on a deposit basis than junior creditors or other creditors (Article 303(1) of the Civil Act).” In light of the fact that a lease on a deposit basis has both the nature of a real right for lease on a deposit basis and the characteristics of a real right for lease on a deposit basis, it is presumed that the registration of the right to lease on a deposit basis, which has been completed prior to the commencement of the duration of the lease on a deposit basis, is valid unless there are special circumstances (see Supreme Court Decision 2008Da67217, Jan. 30, 2009). Meanwhile, Article 4(1) of the Registration of Real Estate Act provides that “

2. The Re-Appellant asserts that the cancellation registration of the right to lease on a deposit basis of this case should be commissioned for the following reasons.

A. The registration of the establishment of chonsegwon of this case completed on February 13, 2015 with respect to the instant real estate becomes effective from February 24, 2015 on the date on which the term of chonsegwon begins, and until that time, it becomes invalid.

B. Therefore, the instant chonsegwon cannot be asserted against the re-appellant who purchased the instant real estate at the auction procedure following the registration of the establishment of the instant neighboring mortgage completed February 16, 2015.

3. On the grounds delineated below, the lower court determined that the instant chonsegwon was the best chonsegwon, and thus, the buyer may oppose the re-appellant, and that the registration of the instant chonsegwon was not subject to the request for cancellation.

A. In the auction procedure, whether the burden of real estate has not been taken over by the purchaser should be determined solely on the basis of what has been recorded in the registration record of real estate, and the highest priority of chonsegwon is not extinguished by sale unless a demand for distribution is made.

B. The registration of the establishment of chonsegwon of this case on the real estate registry of this case was prior to the registration of the establishment of a mortgage of this case or other provisional seizure, etc., and the person having chonsegwon did not demand a distribution in the auction procedure for exercising the security right.

4. In light of the above legal principles, a junior administrative officer’s disposition that deemed that the registration of chonsegwon in this case is not subject to a request for cancellation based on the contents entered in the registration record is justifiable, and there was no error of misapprehending the relevant legal principles in the judgment of the court below.

The reappeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)