A. Whether the above provisional registration is subject to a request for cancellation under the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990) in a case where a provisional registration of the right to claim ownership transfer registration is made and the auction becomes final and conclusive by a compulsory auction after the provisional registration is made (affirmative)

B. Whether the provisional registration under the above “A” is the provisional registration for security under the Provisional Registration Security, etc. Act, and even if the application for a demand for distribution is not made or the dividends are not received, it is subject to a request for cancellation under the same Act (affirmative)

C. Whether a compulsory auction can be conducted even if the due date for the secured debt of the right to collateral security has not yet arrived for the real estate on which the right to collateral security was established (affirmative), and whether such a compulsory auction causes damage to a mortgagee (negative)

D. The purport of Article 608(2) of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990), and whether this provision violates Article 11(1) or 23 of the Constitution (negative)

A. In a case where a provisional registration is made to preserve the right to claim ownership transfer registration of a real estate on which a right to collateral security is established, and a compulsory auction is conducted thereafter, and the decision to grant a successful bid becomes final and conclusive pursuant to Article 608(2) of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 1990), prior collateral security is extinguished due to a successful bid and the right under provisional registration is extinguished, which is subordinate provisional registration is also extinguished. Thus, this provisional registration is also subject to a request for cancellation of the right to claim ownership transfer registration of a real estate under Article 661(1)2 of the same

B. Even if the provisional registration of “A” is a provisional registration of security under the Provisional Registration Security Act, the right to the provisional registration is also extinguished by a successful bid under Article 15 of the same Act, and is subject to entrustment of cancellation under Article 16(2) of the same Act, and the same is also applicable to a case where a request for distribution is not filed or a dividend is not received in the auction procedure.

C. In the event that an auction is conducted on the basis of the right to collateral security, if the secured claim of the right to collateral security which is the cause of the auction has not yet arrived, the auction cannot be conducted on the ground of the exercise of the right to collateral security, but if an application for a compulsory auction is filed on an immovable on which the right to collateral security is established, the compulsory auction can be duly conducted even if the due date for the secured claim of the right to collateral security has not yet arrived. In such a case, the right to collateral security is always extinguished regardless of whether the due date for the secured claim has yet to arrived

D. The purport of Article 608 (2) of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 190) provides that "a security right on real estate shall be extinguished by sale" is a right to receive repayment from the original exchange value of the real estate, so once the sale of the object is realized, the security right on real estate existing at the time of the sale shall be preferentially paid out of the sale price and shall be extinguished in accordance with the order of priority and shall be avoided again the auction of the real estate again, and the successful bidder shall also acquire the real estate without any burden. Therefore, the sale price shall not be sold unless it is deemed that there is a lack of repayment of the secured claim prior to the security right on the attached claim (Article 608 (1) of the same Act). Since the above provision provides that a security right on real estate shall not be extinguished only due to the security right, or that the property right of the secured creditor may not be unduly infringed and that the creditor shall not be subject to unfair discrimination against the execution creditor, as long as the mortgagee fully paid the security right or the secured creditor may not be subject to seizure.

(a)B. (d) Article 608(2)(a) of the former Civil Procedure Act (amended by Act No. 4201, Jan. 13, 1990); Article 661(1)2(b) of the same Act; Articles 15 and 16(2)(d) of the Provisional Registration Security Act; Articles 608(1) of the Civil Procedure Act; Articles 11(1) and 23 of the Constitution;

A.B. Supreme Court Order 87Ma1169 Decided April 28, 1988 (Gong1988,908) dated July 25, 1989 (Gong1989,1282) dated November 6, 1989 (Gong1990,446) dated November 6, 1989 (Gong1990,446)

Plaintiff

Defendant

Msan District Court Decision 90Na5201 delivered on October 8, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

On the first ground for appeal

In light of the records, the plaintiff recognized that the real estate of this case was sold at auction and acquired on October 5, 198 and completed the registration of ownership transfer in the compulsory auction procedure conducted in accordance with legitimate procedures for the real estate of this case, and the registration of transfer in the name of the plaintiff was completed in collusion with the plaintiff and the non-party, who is the original owner of the real estate of this case, in order to pretend debts and deception the court, and thus, it was conducted in accordance with the procedure for compulsory auction under the name of the debtor, and therefore, it is acceptable to the reasoning of the court below's rejection of the

Therefore, there is no reason to argue that the acquisition of the Plaintiff’s ownership is null and void on the premise that the lower court did not recognize it.

On the second ground for appeal

1. In the instant case, in a case where a provisional registration of the right to claim for ownership transfer registration of a real estate on which a right to collateral security is established is made and a compulsory auction is held thereafter and the decision of approval of the successful bid becomes final and conclusive, pursuant to Article 608(2) of the Civil Procedure Act prior to the amendment by Act No. 4201 of Jan. 13, 1990, a prior priority collateral security is extinguished due to a successful bid and the right in provisional registration, which is subordinate, ceases to exist. Thus, the provisional registration also becomes subject to entrustment of cancellation as "the entry of burden on real estate which a successful bidder has not taken over" under Article 61(1)2 of the same Act (see, e.g., Supreme Court Decisions 88Meu6846, Jul. 25, 1989; 89Ma78, Nov. 6, 1989).

Therefore, the court below's decision to the same purport is just in holding that, when the decision to grant a successful bid on the real estate of this case becomes final and conclusive, prior priority mortgage exists over provisional registration in the name of the defendant, and that even if provisional registration remains without cancellation due to an incidental circumstance, it cannot be asserted against the plaintiff, who is the successful bidder of this case, and there is no error of law by misunderstanding the legal principles such as theory

2. In addition, even if the above provisional registration is a provisional registration for security under the Provisional Registration Security Act, the right to the provisional registration is also extinguished by a successful bid under Article 15 of the same Act, and is subject to entrustment of cancellation under Article 16 (2) of the same Act, and also the case where the defendant did not apply for a demand for distribution or did not receive a dividend in the auction procedure.

3. In the event that an auction is conducted on the basis of the right to collateral security, it is the theory of lawsuit that if the secured claim of the right to collateral security which is the cause of the auction has not yet arrived, the auction cannot be conducted on the ground of the execution of the right to collateral security, but in this case, if an application for a compulsory auction is filed on the real estate on which the right to collateral security is established, such as the right to collateral security, even if the due date for the secured claim has not yet arrived, the right to collateral security may be duly held, regardless of whether the due date for the secured claim has yet to arrived, and in this case, the amount to be distributed to the mortgagee shall be deposited (Articles 658 and 589(2) of the Civil Procedure Act).

Furthermore, according to Article 3 of the evidence No. 4-7 (Contract for Establishment of Mortgage) of this case, when entering into a contract to establish a senior mortgage of this case, it can be known that the contract would lose the benefit of time and immediately pay the full amount of the debt if the contract is subject to seizure auction from another person. Thus, the claim secured by the senior mortgage of this case shall be deemed to have arrived at the due date due to the plaintiff's application for compulsory auction by auction. Therefore, there is no reason

On the third ground for appeal

Article 608 (2) of the Civil Procedure Act prior to the above amendment provides that "a mortgage existing on the real estate shall be extinguished by sale" means a right to receive repayment from the original exchange value of the real estate, so once the sale of the object is realized, it shall be deemed that the real estate existing at the time of the sale is repeated after the auction is extinguished by having the real estate paid in preference to the sale price in accordance with the order of priority, and it shall not be sold unless the sale price is not sufficient to repay the secured debt which takes precedence over the seizure claim (Article 608 (1) of the Civil Procedure Act), so it shall not be deemed that the real estate can not be sold unless there is a lack to repay the secured debt which takes precedence over the seizure claim (Article 608 (1) of the same Act). Since the above provision provides that since the property right of the mortgagee which takes precedence over the execution creditor is unfairly infringed and the creditor may take unfair profits, as long as the mortgage is extinguished after the mortgagee fully repaid the secured debt by the mortgagee, the mortgagee may not be discriminated against the right holder or the execution creditor.

In addition, if the sale of real estate is realized upon a request for auction by an execution creditor, the mortgage on the real estate is extinguished, so it cannot be said that the property right of the mortgager is infringed.

Therefore, we cannot accept the judgment of the court below or the argument that Article 608 (2) of the Civil Procedure Act violates Article 11 (1) and Article 23 of the Constitution, and the argument is without merit.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)