(a) If a compulsory auction has been executed, a cancellation of provisional registration made subordinate to a right to collateral security;

B. Whether it is necessary to attach a written consent, etc. from a third party interested in the registration even when the registration is cancelled at the request of the court (negative)

A. Even in the case where a compulsory auction is implemented after a provisional registration for preserving a right to claim ownership transfer registration, even in the case where a compulsory auction is completed by an application for a compulsory auction registered after such provisional registration, the provisional registration holder may not oppose the above right to collateral security, and in the case where a establishment registration of a collateral security which is extinguished by the auction exists, the provisional registration holder may not oppose the above right to collateral security, and in the case where a right to collateral security is extinguished by a compulsory auction, the provisional registration is also extinguished, and therefore, the provisional registration is subject to a request for cancellation as a entry of a burden on real estate which a successful bidder under Article 61(1)2 of the Civil Procedure

(b) In case where a registration is cancelled upon a commission by a court of execution, a written consent from the third party interested in the registration under Article 171 of the Registration of Real Estate Act or a certified copy of the judgment against it need not be attached.

Articles 608 and 661(1) of the Civil Procedure Act, Article 171 of the Registration of Real Estate Act

Supreme Court Order 80Ma491 Dated December 30, 1980, 80Ma739 Dated December 29, 1984

[Judgment of the court below]

Seoul High Court Order 84Ra45 Dated July 12, 1984

The reappeal is dismissed.

The grounds of reappeal (to the extent of supplement in case of those stated in the supplementary appellate brief filed after the deadline for filing the reappeal) are examined.

With respect to paragraphs 1 and 2:

According to the reasoning of the order of the court below, even in cases where a compulsory auction is implemented by a compulsory auction registered after the provisional registration with respect to any real estate for which a provisional registration for preservation for ownership transfer registration has been made, the provisional registration holder cannot oppose the above right to collateral security, and in cases where there exists a establishment registration for a collateral security which is extinguished by the auction, the provisional registration holder cannot oppose the above right to collateral security, and in such cases, the right which is registered at a lower level than the above right to collateral security which is extinguished by a compulsory auction is extinguished. Thus, in such a case, the provisional registration is an entry of a share of real estate which a successful bidder as provided in Article 61 (1) 2 of the Civil Procedure Act has not taken over and is subject to a request for cancellation. In addition, in such a case where a registration is cancelled by a commission of the court of execution, it is unnecessary to attach a written consent from a third party interested in the registration as provided in Article 171 of the Registration of Real Estate Act or a copy of a trial which can oppose it, and the judgment of the court below is justified.

With respect to the third point:

The theory of lawsuit is ultimately deemed to be a mortgage under Article 12 (1) of the Provisional Registration Security Act regarding provisional registration prior to the enforcement of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. However, this cannot be admitted as an independent opinion, and such reason is merely an error of misunderstanding the legal principles as to the nature of provisional registration, and it does not constitute a legitimate ground for reappeal because it does not fall under any of the subparagraphs of Article 11 (1) of the same Act applied mutatis mutandis under Article 13 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings.

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

Justices O Sung-sung(Presiding Justice)