Plaintiff (Attorney Park Im-hwan et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Han Han-soo, Counsel for defendant-appellant)

May 11, 2006

Seoul Eastern District Court Decision 2005Gahap4909 Delivered on August 12, 2005

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim against the defendant is dismissed.

3. All costs incurred between the plaintiff and the defendant shall be borne by the plaintiff.

1. Purport of claim

As to the Plaintiff’s share of 9/10 of the real estate listed in the attached list, the Defendant expressed his/her intention to accept the provisional registration completed under No. 49813, Jun. 11, 1996 by the same registry office, which was revoked and registered under No. 20816, Dec. 23, 2002.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties or acknowledged by the statement in Gap evidence 1:

A. The real estate listed in the separate sheet (hereinafter “instant real estate”) was originally owned by Nonparty 1-1/10 and Co-Defendant 1 of the first instance court jointly owned at 9/10, but the provisional registration stated in the purport of the claim in the Plaintiff’s name (hereinafter “the provisional registration of this case”) was completed on July 9, 1994 as the receipt of No. 50686 on July 9, 1994 as to the portion nine tenth portion of Co-Defendant 1 of the first instance court’s co-defendant 1, and on June 11, 1996 as the receipt of No. 49813 on June 11, 1996.

B. As to the instant real estate, Nonparty 1 filed a lawsuit claiming partition of co-defendant 1 of the first instance court against the co-defendant 1 of the Seoul District Court 99Da134403, and the said court rendered a judgment on October 1, 1999 that sold the instant real estate by auction and distribute the price according to the share ratio, and the said judgment became final and conclusive on October 22, 1999.

C. According to the above judgment, Nonparty 1 applied for an auction for partition of co-owned property (hereinafter “auction of this case”) against the instant real property as Suwon District Court Decision 2001Mo57388, and the above auction court conducted an auction on August 29, 2001 after the decision to commence auction was rendered on September 12, 2001, after the decision to commence auction was made on September 12, 2001, the decision to permit the successful bid as the successful bidder was issued on April 3, 2002, and upon the commission of the auction court upon the payment of the successful bid price by the Defendant on December 10 of the same year, the registration of the above provisional seizure in the name of Nonparty 2 and the provisional registration of this case, which is subordinate thereto, was completed on December 23 of the same year.

2. The plaintiff's assertion

A. The auction of this case is an auction by the judgment on partition of co-owned property, which is a so-called formal auction for realizing an object in money (the "actual auction" to obtain satisfaction of claims, such as a compulsory auction or an auction for exercising a security right). Thus, an auction implemented mainly for the purpose of preserving or arranging the price of a specific property, such as an auction by the judgment on partition of co-owned property, is usually referred to as "official auction" which has been enforced at the time of the auction in accordance with Article 734(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 202). Thus, in the case of formal auction for realization, the purpose of auction is to liquidate the object in money, and it is not required to demand that the applicant or other creditors repay it. Thus, the defendant, the successful bidder, regardless of whether the provisional registration, etc. on the real property of this case, is extinguished through the auction procedure, and the successful bidder, who is the successful bidder, will take over the auction (the auction will be extinguished in full view of ownership of the auction as to acquire the above real property.

B. Even though there is a right to decide on which procedure should be conducted in the auction court, such a formal auction is in principle taken over to the successful bidder without extinguishing the burden of mortgage, provisional registration, etc. on real estate due to the auction. Thus, in order to ensure that the provisional registration of this case is extinguished in the auction of this case, the special sale conditions are set forth, and the auction court did not take certain procedures accordingly, so the provisional registration of this case is taken over to the defendant who is the successful bidder.

C. Even if the view of the extinguishment principle is taken against the formal auction of household affairs, rather than the acceptance principle (the provisional registration of this case is subject to the condition of special sale), the superficies, provisional registration, provisional disposition, etc. registered prior to the registration of seizure shall not be extinguished even in the auction procedure for exercising the security right, and the provisional registration of this case was completed on September 12, 2001, which was the record of the decision to commence the auction of this case, and thus, the provisional registration of this case is not extinguished and is taken over to the defendant who is the successful bidder.

D. Therefore, the provisional registration of this case is illegally cancelled even though it is acquired by the successful bidder by the auction of this case, and thus, it should be restored. The defendant is recognized by the entry in the registry as being likely to incur loss due to the fact that the provisional registration of this case is cancelled by the commission of the auction court, and the defendant is a person who has completed the registration of transfer of ownership due to auction of this case at the time of cancellation of the provisional registration of this case, and therefore, it is obliged to accept the procedure as a third party having a interest

3. Determination

(a) Whether an auction court has discretion on the principle of acceptance and extinction;

Article 734(1) of the former Civil Procedure Act provides that the formal auction procedure shall be conducted in accordance with the example of an auction for the exercise of a security right. Here, the term "execution in accordance with the example" means not all the provisions concerning an auction for the exercise of a security right as they are, but that an auction shall be conducted by using these procedures to the extent that it can be used when it is somewhat changing depending on the nature of the matter. Therefore, in applying the provisions concerning an auction procedure for the exercise of a security right to a formal auction, in particular, in applying the provisions concerning an auction procedure for the exercise of a security right to a formal auction, its discretion is granted to the court of auction as to which extent it can be used, so whether the real estate burden is extinguished by an auction is determined by the auction court at its delegated discretion, and it depends on whether the auction court has decided on what procedure it is in accordance with what procedure, and whether it is conducted (the conflict between the extinction principle and the acquisition principle is unreasonable in view of the nature of the auction and the efficiency of the auction, and it seems that it is not a conflict of discretion granted to the court of auction).

In addition, in light of the fact that both compulsory auction and auction for the exercise of security rights take the principle of extinction, and the law also provides that "in the case of formal auction, it shall be conducted in accordance with the example of auction for the exercise of security rights", and that there is little portion of formal auction in the total auction case and that the general public who wants to purchase naturally is expected to proceed with auction by the extinction principle, if the auction court proceeds the formal auction according to the extinction principle, it is not necessary to take a separate procedure, but if it proceeds with the acquisition principle, it is not necessary to take a separate procedure, but if proceeds with the acquisition principle, it is taken over to the successful bidder without extinguishing the burden on real estate.

Therefore, in the case of formal auction, the effect of the principle of acceptance takes place as a matter of course, or the principle of acceptance takes place as a matter of principle, so the plaintiff's assertion on the premise that it should be determined as a condition of special sale is without merit.

B. Whether the provisional registration of this case is accepted even if the opinion of the extinction is taken

If a provisional registration of prohibition of disposal or preservation of ownership transfer has been made more than the registration of other real rights, such as the right to collateral security, which is extinguished by a successful bid, or the registration of provisional seizure, the provisional disposition holder or the provisional registration holder may not oppose the successful bidder, and the registration of provisional disposition or provisional registration is cancelled after payment of the price (see Supreme Court Order 87Ma169, Apr. 28, 198; Supreme Court Order 2003Ma1438, Oct. 6, 2003). Since the provisional registration in the name of Nonparty 2 prior to the provisional registration in the instant case was cancelled as the auction of this case, the plaintiff's assertion on the premise that the provisional registration in this case is accepted to the defendant is without merit even if taking the view of the principle of extinction, is made.

4. Conclusion

If so, the plaintiff's claim against the defendant is dismissed due to the lack of reason, and since the part against the defendant in the judgment of the court of first instance as to the defendant is unfair, it is revoked, and the plaintiff's claim against the defendant is dismissed, and it is so decided as per Disposition

[Attachment Omission of List of Real Estate]

Judges Kim Yong-Hun (Presiding Judge)