If a compulsory auction has been carried out, the cancellation of a provisional registration which has been made subordinate to a mortgage.

Even in cases where a compulsory auction is implemented upon an application for a compulsory auction registered after the provisional registration for the preservation of right to claim a transfer of ownership is prior to the provisional registration even in cases where a compulsory auction is conducted after the provisional registration, and where there exists a registration of establishment of establishment to be effective at the time of the auction by compulsory auction and to be extinguished by the auction, such provisional registration cannot be set up against a mortgage, and the right to a provisional registration which is subordinate to that which the mortgage is extinguished by a compulsory auction is also extinguished. Thus, this provisional registration is subject to a cancellation commission as "entry of burden on the real estate on which the successful bidder has not taken over" under Article 61 (1) 2 of the Civil Procedure Act. This is also subject to cancellation of the provisional registration as well as the case where the mortgagee who has priority over the provisional

Article 608(2) of the Civil Procedure Act; Article 661(1)2 of the Civil Procedure Act

Supreme Court Order 80Ma473 Dated December 30, 1980 80Ma491 Dated December 31, 1984

[Judgment of the court below]

Suwon District Court Order 84Ra80 Dated September 14, 1984

The reappeal is dismissed.

The grounds of reappeal are examined.

Even in cases where a compulsory auction is implemented upon an application for a compulsory auction registered after the provisional registration for the preservation of a right to claim ownership transfer registration, the provisional registration shall not be set up against a mortgage, and in cases where there is a mortgage establishment registration to be effective at the time of the auction by a compulsory auction and the mortgage to be extinguished by the auction, the provisional registration shall not be set up against a mortgage, and in cases where the mortgage to be extinguished by the auction is extinguished, the provisional registration shall be subject to an entrustment of cancellation as "the entry of a share in the real estate which a successful bidder has not taken over" under Article 61 (1) 2 of the Civil Procedure Act (see Supreme Court Order 80Ma491, Dec. 30, 1980; Supreme Court Order 80Ma491, Dec. 30, 1980; and even in cases where a senior mortgagee fails to apply for a voluntary auction, if the mortgage is extinguished due to the auction, it shall be subject to cancellation since there is no reason to distinguish the case where the mortgagee applied for auction.

In the same purport, the judgment of the court below that the registration official’s cancellation of the provisional registration of this case is justifiable by the commission of the auction court’s cancellation, and it cannot be accepted to criticize the order of the court below from the viewpoint of objection.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)