[1] Whether the registration of provisional seizure made by a third party with the third party as the debtor is invalidated by full payment of the successful bid price under the condition that a transfer registration of ownership in the name of the third party has been made after the entry of a request for auction was registered and the third party has paid the successful bid price in full (affirmative)

[2] The case holding that Eul cannot seek consent to the provisional attachment cancellation registration against Byung, in case where Eul, a creditor of Eul, was provisionally seized after the successful bidder had completed the ownership transfer registration in the name of Eul and the provisional attachment registration in the name of Eul was cancelled at the request of the auction court after Eul had completed the ownership transfer registration in the name of Eul and the provisional attachment registration in the name of Eul was cancelled, and the establishment registration in the name of Byung was completed on the basis of the successful bid in the name of Eul, and Eul cannot seek consent to the provisional attachment cancellation registration

[1] If a third party who acquired a right to real estate becomes aware of either a request for auction or a seizure at the time of acquisition, it cannot be set up against the seizure (Article 609(1) of the former Civil Procedure Act prior to amendment by Act No. 6626 of Jan. 26, 2002). Thus, the registration of transfer of ownership in the name of the third party purchaser cannot be set up against the successful bidder, which was completed after the entry of the request for auction was registered, and in case where the successful bidder has paid the price of the auction because he fell under the entry of the above real estate which was not taken over by the successful bidder, the court shall request ex officio the cancellation thereof (Article 61(1) of the above Act). The registration of seizure or provisional seizure made by the third party purchaser with the debtor is invalidated by the full payment of the successful bidder price. This legal principle does not change even if the registration of seizure or provisional seizure made by the third party purchaser to the debtor was completed after the full payment of the successful bidder price.

[2] The case holding that Eul cannot seek consent to the provisional seizure cancellation registration against Byung, in case where Eul, a creditor of Eul, was provisionally seized after the successful bidder had completed the ownership transfer registration under Gap's name and the provisional seizure registration under Eul's name was cancelled at the request of the auction court, and the ownership transfer registration under Eul was made under Gap's name and the provisional seizure registration under Eul was made under Eul's name, and the establishment registration under Eul was completed based on Byung's name, and Eul cannot seek consent to the provisional seizure cancellation registration

[1] Articles 609(1) and 661(1) (see current Article 92(1) of the former Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002); Article 75 of the Registration of Real Estate Act / [2] Articles 609(1) and 661(1) (see current Article 92(1) of the former Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002); Article 75 of the Registration of Real Estate Act

Sangdong-dong District Housing Association (Attorney Yellow-chul, Counsel for the plaintiff-appellant)

Korea Start-up Investment Corporation (Attorney Lee Ho-ho, Counsel for defendant-appellant)

Seoul High Court Decision 99Na58725 delivered on May 15, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Fact-finding and judgment of the court below

A. The lower court acknowledged the following facts in full view of the evidence produced therefrom.

(1) The real estate of this case was completed registration of preservation of ownership in the name of Nonparty 1. However, Nonparty 2 applied for a compulsory auction on the said real estate by Nonparty 1 as the debtor, and Nonparty 2 applied for a compulsory auction on the said real estate as Seoul District Court Decision 95 Ma31721, and the court accepted this and completed the compulsory auction on July 31, 1995.

B. On August 9, 1995, on the ground of the termination of title trust with respect to the instant real estate, the registration of ownership transfer (hereinafter referred to as the "former registration") was completed in three co-defendants of the court below on the ground of the termination of title trust. However, upon the compulsory auction procedure of the above 95 Mata-31721, Nonparty 3 participated in the bid and paid the successful bid price on May 22, 1996.

Article 111,079,821 of the Act on the Registration of Provisional Seizure against Non-Party 3, the Plaintiff filed an application for provisional seizure of real estate with the Seoul District Court 96Kadan946, on September 12, 200, with respect to the real estate of this case (hereinafter referred to as the "registration of provisional seizure of this case").

Along with the commission of the auction court on June 23, 1997, the registration of ownership transfer (hereinafter referred to as the "new registration") in the name of Nonparty 3 was completed due to the decision to permit the successful bid, and the registration of ownership transfer due to the compulsory auction and the cancellation of title trust in the name of Nonparty 3 was cancelled.

(v) on June 27, 1997, the registration of the establishment of a mortgage on the instant real estate by Defendant Korea Investment Company as a mortgagee was completed, and on June 20, 1998, the provisional attachment registration was completed in the name of the Korea Technology Credit Guarantee Fund.

B. Based on such factual basis, the court below determined that the application for the registration of provisional seizure of this case was made after Nonparty 3 acquired the ownership of the real estate of this case by fully paying the successful bid price, and that where the owner on the registry at the time of provisional seizure and the purchaser on the successful bid are the same person, and the registration of provisional seizure of this case was made without completing the registration of ownership transfer by subrogation of creditors, the registration of provisional seizure of this case can be asserted against the successful bidder as the registration of provisional seizure after the extinction of the effect of seizure by acquiring the ownership of the real estate after the successful bidder actually paid the successful bid price in full, and therefore, it cannot be deemed that the successful bidder under Article 61 (1) 2 of the Civil Procedure Act has the above burden of real estate not taken over by the successful bidder, and therefore, the cancellation of the registration of provisional seizure should be restored as it is improper by a

2. Judgment of the Supreme Court

If a third party who acquired a right to real estate becomes aware of the application for auction or seizure at the time of acquisition thereof, it cannot set up a defense against seizure (Article 609(1) of the former Civil Procedure Act prior to amendment by Act No. 6626 of Jan. 26, 2002). Accordingly, the registration of transfer of ownership in the name of the third party purchaser which was completed after the entry of the application for auction was registered cannot be set up against the successful bidder, and where the successful bidder has paid the price of the auction in full because he falls under the entry of the above share of the real estate which was not taken over by the successful bidder, the court shall request ex officio the cancellation thereof (Article 61(1) of the above Act). The registration of seizure or provisional seizure made by the third party purchaser with the debtor shall be invalidated by the full payment of the successful bidder price. This legal principle does not change even if the registration of seizure or provisional seizure made by the third party purchaser to the debtor was made after the full payment of the successful bidder price.

In this case, the registration of provisional seizure by the plaintiff was completed after the entry of a request for auction on the real estate in this case, and the above non-party 3 was registered in the old registration in the name of the non-party 3 (the third party purchaser), and thus the registration of provisional seizure was completed after the full payment of the successful bid price was made by the court of auction, and the cancellation of the registration of provisional seizure was made in accordance with the above legal principles, and thus, it is lawful and therefore, it is not possible to recover the registration of provisional seizure.

Nevertheless, the court below's cancellation on the premise that the plaintiff can oppose the successful bidder by the above provisional seizure registration should be restored as it is improper, and the defendant has a duty to express his/her consent to the registration of recovery. Thus, the court below erred by misapprehending the legal principles on the validity of the registration of application for auction and the registration of the cancellation of attachment, which affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)