Plaintiff (Attorney So Young-young et al., Counsel for the plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. (Law Firm Han, Attorneys Lee Lee-ju, Counsel for defendant-appellant)

April 27, 2016

Busan District Court Decision 2014Da249368 Decided June 30, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The defendant shall not be subject to compulsory execution against real estate listed in the separate sheet on May 28, 2014, based on the executory exemplification of the Supreme Court Decision 2008Da146130 Decided 208DaGa146130 Decided 198.

1. Facts of recognition;

A. On October 28, 1993, the Defendant received a decision of provisional seizure of real estate by Busan District Court 93Kahap4169 as to the real estate listed in the separate sheet owned by Daejin Construction Co., Ltd. (hereinafter “Sajin Construction”) (hereinafter “the instant real estate”), and on November 2, 1993, registered provisional seizure of the instant real estate.

B. On February 29, 1992, the Plaintiff entered into a sales contract on the instant real estate with the Jinjin business, and on November 22, 1993, the Plaintiff completed the registration of ownership transfer for the instant real estate on the grounds of the said sale.

C. The defendant filed a lawsuit against Jinjin with Busan District Court 98Da5627 claim. On January 26, 1999, the above court rendered 621,419,863 won and 616,419,863 won among them, shall be 11.5% per annum from July 21, 1993 to August 19, 193; 17% per annum from August 20, 1993 to October 15, 1995 to 19.18% per annum from October 16, 195 to December 31, 1997; 18% per annum from August 19, 198 to 19.3% per annum from September 19, 195 to 19.3% per annum; and 19% per annum from January 1, 198 to 209; 19.37% per annum from September 19, 1993.

D. The defendant filed a lawsuit claiming the amount of reimbursement at Busan District Court 2008Da146130 for the extension of the prescription of the above claim for reimbursement, and the above court rendered a favorable judgment on June 10, 2009, and the above judgment became final and conclusive as it is.

E. On May 27, 2014, the Defendant applied for a compulsory auction of the instant real estate owned by the Plaintiff as Ulsan District Court No. 2014Ma8839, Ulsan District Court, on the basis of an executory exemplification of the above judgment on the business of building lots. The said court accepted the Defendant’s application and rendered a decision to commence compulsory auction of the instant real estate on May 28, 2014, and on the same day, the registration of the entry of the decision to commence compulsory auction was completed on the instant real estate.

[Ground of recognition] Facts without dispute, entry of Gap 1 to 3 evidence (including each number), the purport of the whole pleadings

2. The plaintiff's assertion

A. Even one’s own real estate can be the object of prescriptive acquisition. From November 22, 1993, the Plaintiff, who completed the registration of ownership transfer on the instant real estate, occupied the instant real estate in peace and openly for about 22 years to the present. As such, since the Plaintiff acquired the instant real estate at its own discretion, the provisional attachment by the Defendant should be extinguished. Since the instant order to commence the seizure and compulsory auction was based on the provisional attachment that had already been extinguished, the defect is significant and apparent, and thus, it cannot be permitted.

B. The Plaintiff’s registration of transfer of ownership to the instant real estate was made by the judgment of the court that was rendered and finalized on September 9, 1993, and thus, it does not go against the effect of prohibition of disposal of provisional seizure made on October 28, 1993. Moreover, even in the balancing of interests, the Plaintiff has a right to oppose the Defendant, because the interests of protection against the Plaintiff’s ownership are greater than the provisional seizure of the Defendant, and the principal execution of the instant real estate and the decision of commencement of compulsory sale should be revoked.

C. Since the defendant filed a lawsuit against the Daejin Construction Business and received a favorable judgment on January 26, 199, and the judgment became final and conclusive around that time, the defendant at least transferred the provisional seizure of the real estate of this case from January 26, 199 to the seizure and applied for a compulsory auction of the real estate, notwithstanding the fact that the defendant could apply for a compulsory auction of the real estate from January 26, 199, he did not exercise the above right for a period exceeding 15 years from May 20, 2014, which was the date of application for the compulsory auction of this case. Accordingly, the plaintiff came to believe that the plaintiff would not exercise the right any longer, and there was a justifiable reason that the plaintiff trusted, therefore, the defendant's decision on compulsory auction of this case

3. Determination

A. Determination as to the assertion of prescriptive acquisition

The possession of one’s own real estate cannot be deemed as possession on the basis of the prescription period for acquisition (see, e.g., Supreme Court Decision 96Da55860, Mar. 14, 1997). Accordingly, the Plaintiff’s assertion on this part, which is premised on the completion of the prescription period for the instant real estate owned by the Plaintiff, is without merit (it is inappropriate for the Plaintiff to apply the above judgment, since it is a case where a title trust agreement has been registered under another person’s name, other than the possessor, and it is a case where a title trust agreement has been completed under another person’s name, and it is not appropriate to apply the instant lawsuit).

B. Determination as to the assertion that the prohibition of disposal of provisional seizure does not go against the validity of the provisional seizure

In principle, acquisition, loss, and transfer of real rights due to a juristic act on real estate shall take effect by registration (Article 186 of the Civil Act): Provided, That the acquisition of real rights to real estate by inheritance, expropriation, judgment, auction and other provisions of law does not require registration (main sentence of Article 187 of the Civil Act). However, the so-called judgment under Article 187 of the Civil Act refers to the case where the formation of real rights on real estate takes effect by the judgment itself, and it does not include the case where ordering the execution of the procedure for registration of transfer of real estate ownership on the ground of a juristic act between the parties (see Supreme Court Decision 64Da1721, Aug. 17, 1965, etc.).

According to the purport of Gap's evidence Nos. 2, 5, and 6, the Busan District Court rendered a judgment on September 9, 1993 that "Seoul District Court paid KRW 3,200,000 to the Busan District Mutual Saving and Finance Company, and at the same time the plaintiff paid KRW 3,20,000 to the plaintiff on February 29, 1992, the above judgment becomes final and conclusive at that time, and the plaintiff filed an application for ownership transfer registration of the real estate in accordance with the above judgment on November 1, 1993. According to the above facts of recognition, the above judgment, which is the basis of the above judgment, is not a judgment that takes effect by the formation of ownership transfer registration of the real estate in the future, but is a performance judgment that orders the execution of the procedure for ownership transfer registration of the real estate in the course of sale between the parties. Therefore, not only when the above judgment becomes final but also when the plaintiff completed the ownership transfer registration of the real estate in the future, the plaintiff acquires the real estate in this case.

Moreover, a lawsuit of demurrer by a third party against a compulsory execution under Article 48 of the Civil Execution Act is seeking the exclusion of the execution by asserting that there is a right to prevent the transfer or delivery of the ownership or other subject matter of the execution already commenced with respect to the subject matter of the execution (see Supreme Court Decision 2007Da7409, May 10, 2007, etc.). As such, the right which is the cause of the lawsuit may be set up against the execution creditor against the execution creditor (see Supreme Court Decision 2007Da7409, May 10, 2007, etc.). As seen above, since the Plaintiff’s acquisition of the real property of this case after the provisional seizure by the Defendant is registered after the provisional seizure, the Plaintiff cannot set up against the Defendant who is the provisional seizure right holder, and this does not change because the final judgment ordering the execution of a juristic act or registration which

Therefore, this part of the Plaintiff’s assertion based on different legal principles is without merit.

C. Judgment on the assertion that it violates the principle of good faith

The circumstance alleged by the plaintiff alone is that it is difficult to regard the application for commencement of compulsory auction as an act contrary to the principle of good faith, and there is no other evidence to acknowledge it.

Therefore, the plaintiff's above assertion is without merit.

4. 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, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Sung-soo (Presiding Judge)