[1] The meaning of "a change in the material relation of rights to real estate" under Article 121 subparagraph 6 of the Civil Execution Act, which provides the grounds for non-permission of sale

[2] The validity of a principal registration based on a provisional registration for security held in violation of Articles 3 and 4 of the Provisional Registration Security Act (negative), and whether, if a person having a right to a provisional registration undergoes liquidation procedures as stipulated in the above provisions, the null and void principal registration may become an effective registration in accordance with the substantive legal relations (affirmative)

[3] In a case where an application for a compulsory auction, etc. is filed before a liquidation procedure under Articles 3 and 4 of the Provisional Registration Security Act is completed, whether a person holding a provisional registration for security may file a claim for a principal registration based on a provisional registration (negative), and whether such provisional registration is extinguished by sale of real estate (affirmative)

[4] In a case where a principal registration based on a provisional registration for security was made after the date of sale for compulsory auction procedure, the case reversing the order of the court below that the principal registration based on the above provisional registration is null and void since it did not go through the liquidation procedure before the application for compulsory auction, and the provisional registration is extinguished by the sale of real estate, even if it is extinguished by the sale of real estate

[1] Articles 121 subparag. 6 and 123(2) of the Civil Execution Act / [2] Articles 3 and 4 of the Provisional Registration Security Act / [3] Articles 3, 4, 13, 14, and 15 of the Provisional Registration Security Act / [4] Articles 121 subparag. 6 and 123(2) of the Civil Execution Act, Articles 3, 4, 13, 14, and 15 of the Provisional Registration Security Act

[1] Supreme Court Order 2005Ma643 Decided August 8, 2005 (Gong2005Ha, 1546) Supreme Court Order 2005Ma952 Decided December 9, 2005 / [2] Supreme Court Decision 2002Da42001 Decided December 10, 2002 (Gong2003Sang, 342) Supreme Court Decision 2007Da49595 Decided December 13, 2007

Appellant 1 and 2 others

Suwon District Court Order 2009Ra167 dated August 3, 2010

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

The grounds of reappeal are examined.

1. The court below held that the provisional registration of this case in the procedure of compulsory auction of this case in the name of four persons, including the applicant for the provisional registration of this case, shall be deemed a provisional registration for security, and the provisional registration of this case is expected to be extinguished by the sale of the real estate of this case. However, according to the completion of the registration of ownership transfer based on the provisional registration after the purchase by three persons, including the applicant for provisional registration, etc., from among the right holders of provisional registration, the re-appellants cannot acquire the ownership effectively because it is impossible to oppose the above provisional registration even if the above three-fourths among the real estate of this case are permitted to sell the above provisional registration. The court below rejected the re-appellant's immediate appeal against the decision of rejection of sale of this case on the grounds that the above three-fourths among the real estate of this case can not oppose the above provisional registration

2. However, we cannot accept the above judgment of the court below as it is.

Article 123(2) and Article 121 subparag. 6 of the Civil Execution Act provide that "when it is found that real estate has been significantly damaged due to a natural disaster or any other cause not attributable to himself/herself or that significant legal relationship with respect to real estate has changed during the auction procedure," sale shall not be permitted ex officio. Here, "significant change in legal relationship with respect to real estate" referred to in this context means even if there is no physical damage to real estate, even if there is an application for purchase with the knowledge that there is no right to priority disposal prohibition or opposing right, or that there is no right to retention on real estate, the right holder shall file a request for sale permission after the lapse of such period. However, according to Article 123(2) and Article 121 subparag. 5 of the Civil Execution Act, if the right to preferential registration is changed to exist due to the extinguishment of senior collateral security, or that there is no right to acquire the real estate due to a significant increase in the burden on the real estate, the right holder shall file a request for sale of real estate with the obligor for provisional registration under Article 20.

In light of the above legal principles, if the provisional registration of this case is a provisional registration for security and the principal registration is made after the date of sale for compulsory auction procedure of this case, the principal registration based on the provisional registration of this case shall be cancelled unless it has gone through the liquidation procedure prior to the application for compulsory auction procedure of this case, and the provisional registration of this case shall be extinguished by the sale of the real estate of this case. However, there is no evidence to prove that the principal registration based on the provisional registration of this case was completed such liquidation procedure. Rather, according to the records acknowledged by the court below, if the auction court sent the peremptory notice demanding that the provisional registration of this case be a provisional registration of this case and if it is a provisional registration of this case, three parties, such as the applicant, should submit the bond account statement to clarify the contents, existence of the claim, cause, and amount of the provisional registration of this case, and such liquidation procedure should be cancelled, and the provisional registration of this case shall be extinguished by the sale of the real estate of this case.

Nevertheless, for reasons indicated in its holding, the court below determined that the re-appellant was unable to oppose the provisional registration of this case even if he was permitted to sell, and thus constitutes a ground for non-permission of sale, which constitutes a ground for non-permission of sale. The court below erred by misapprehending the legal principles on changes in the important relation of rights to real estate and the legal principles on extinguishment of the provisional registration of security in the procedure for compulsory auction and thereby affecting the conclusion of the decision. The ground

3. Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)