The method of remedy for the mortgagee who had not been distributed in the auction procedure for the real estate after the registration of establishment was illegally cancelled.

If a registration is cancelled without any reason because the requirements for the validity of a real right take effect and the registration is not required to continue to exist, the validity of the real right is not affected, and the registered titleholder of the cancelled registration is presumed to be a legitimate right holder even before the completion of the registration of recovery. Thus, the registered titleholder of the cancelled registration even before the completion of the registration of creation of a mortgage is presumed to be a legitimate right holder. As the registration of creation of a mortgage was illegally cancelled and the amount equivalent to the secured claim amount on the date of distribution in the auction procedure for the real estate was not paid due to the cancellation of the registration of restoration, the mortgagee of the collateral who was not paid dividends may be present on the date of distribution, raise an objection, raise an objection, and obtain relief by filing a lawsuit of demurrer against the distribution. Even if the distribution schedule becomes final and conclusive because the date of distribution is not present on the date of domestic distribution, making distribution pursuant to the finalized distribution schedule does

Articles 148 subparag. 4 and 154 of the Civil Execution Act, Article 741 of the Civil Act

Supreme Court Decision 86Da2949 delivered on November 8, 198 (Gong1988, 1522) Supreme Court Decision 95Da39526 delivered on September 30, 1997 (Gong1997Ha, 3253) Supreme Court Decision 98Da27197 delivered on October 2, 1998 (Gong198Ha, 2576)

Plaintiff

Defendant

Suwon District Court Decision 99Na16429 delivered on September 20, 2000

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Comprehensively taking account of the admitted evidence, the court below determined that the registration of the establishment of the mortgage was cancelled on November 17, 1995 on the non-party 1, the non-party 1, the plaintiff, the maximum debt amount of 36,00,000 won, and the registration of the establishment of the mortgage was completed on August 23, 1993 on the non-party 1, the registration of the establishment of the mortgage was cancelled on the non-party 1, the non-party 1, the non-party 1, the non-party 1, the non-party 3, the non-party 1, the non-party 1, the non-party 3, the non-party 1, the non-party 1, the non-party 1, the non-party 1, the non-party 3, the non-party 1, the non-party 1, the non-party 1, the non-party 1, the non-party 1, the non-party 3, the non-party 1, the non-party 1, the non-party 1, the non-party 9.

2. The validity of a real right is not affected if a registration is cancelled without any reason because the requirements for validity of a real right take effect and the registration is not required to continue to exist. The registered titleholder of a cancelled registration is presumed to be a lawful holder of a right (see, e.g., Supreme Court Decision 95Da39526, Sept. 30, 197). As the registration titleholder of a cancelled registration even before the completion of the restoration registration is presumed to be a lawful holder of a right (see, e.g., Supreme Court Decision 95Da39526, Sept. 30, 1997). The mortgagee, who did not receive the amount equivalent to the secured claim on the date of distribution of the auction procedure for the real estate, was present on the date of distribution, and raised an objection, and was entitled to remedy. Even if the distribution schedule becomes final and conclusive because he did not appear on the date of domestic distribution, the execution of distribution pursuant to the finalized distribution schedule pursuant to the substantive law becomes final and conclusive (see, e.g., Supreme Court Decision 2009Da29797).

Nevertheless, the court below held that a mortgagee, who had not been apportioned the amount equivalent to the secured debt in the auction procedure for the real estate because the registration of establishment was illegally cancelled and the registration of restoration was not completed, cannot file a lawsuit of demurrer against a distribution under the premise that the registration of establishment of a mortgage was valid due to the cancellation thereof. In so doing, the court below erred by misapprehending the legal principles as to the presumption power of registration revoked and the distribution. The ground of appeal pointing this out is justified.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)