A. Where a new building without identity is newly constructed after its destruction, whether a successful bidder in a voluntary auction procedure conducted based on the right to collateral security for the old building can acquire ownership of the new building (negative)

B. Whether Article 578(1) and (2) of the Civil Act as to the warranty liability applies to the case where the auction procedure becomes null and void (negative)

A. In the event that a new building was newly built after the destruction of the old building and the establishment registration of a neighboring mortgage on the destroyed building is null and void, and even if the new building was awarded a successful bid in the voluntary auction procedure, the ownership of the building cannot be acquired.

B. Article 578(1) and (2) of the Civil Act provides that when the successful bidder is unable to fully acquire the property right which is the object of the successful bid due to defects in an auction which is a kind of sale, the successful bidder shall be liable to compensate the debtor of the auction at the location of the seller or the creditor to protect the successful bidder by imposing a warranty liability corresponding to the case of sale. The auction procedure is valid as in the case of sale, but the successful bidder may not acquire the complete ownership or lose it due to defects such as all or part of the right which is the object of the auction, and there is no room for recognizing the debtor of the auction or creditor's warranty liability in the case where the auction procedure

(a) Articles 186 and 356(b) of the Civil Act

A. Supreme Court Decision 75Da2211 decided Oct. 26, 1976 (Gong1976, 9453) (Gong1992, 1414) 91Da39184 decided Mar. 31, 1992 (Gong1992, 1414). 91Da21640 decided Oct. 11, 1991 (Gong191, 2709)

Plaintiff

Attorney Lee Jae-ho, Counsel for the Korea Credit Guarantee Fund

Seoul High Court Decision 91Na27282 delivered on March 25, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below held that even if the non-party 1 was the debtor as the non-party 2 and applied for voluntary auction of the above real estate as the mortgagee of the building site established on May 13, 1985 as well as the old building on the ground as stated in the judgment of the court below, the part of the above real estate was successful at KRW 35,870,00 and the new building on the ground was sold at KRW 30,240,00 and the above successful bid price was paid on April 25 of the same year. However, the above non-party 2, the owner of the above real estate, was destroyed by the new building on the new building on the new building site, and the new building (new building) was destroyed by the new building on the new building on the ground as stated in the judgment of the court below, and the new building on the new building on the new building on the new building site was destroyed by the new building on the new building's surface without any dispute between the new building and the new building on the new building on the new building's surface.

In light of the records, the court below's finding that a new building was newly constructed after the destruction of the old building of this case and that there is no identity between the old building and the new building is justified. In such a case, the establishment registration of the neighboring establishment of the destroyed building is null and void, and the ownership of the new building cannot be acquired even if the new building was awarded at the voluntary auction procedure conducted thereby (see, e.g., Supreme Court Decision 75Da2211, Oct. 26, 1976; Supreme Court Decision 91Da39184, Mar. 31, 1992). Therefore, the judgment of the court below did not contain any errors in the rules of evidence such as the theory of lawsuit, or in the misapprehension of legal principles. The arguments are without merit.

2. On the second ground for appeal

Article 578(1) and (2) of the Civil Act provides that when the successful bidder is unable to fully acquire the property right which is the object of the successful bid due to defects in the auction which is a kind of sale, the successful bidder shall be liable to compensate the debtor of the auction at the location of the seller or the creditor for the defects in the auction, corresponding to the case of sale, to protect the successful bidder. The auction procedure is valid as in the case of sale, but the successful bidder is not able to acquire the complete ownership or lose it due to defects in all or part of the rights which are the object of the auction which belong to others, and where the auction procedure itself becomes null and void, there is no room to recognize the debtor of the auction or creditor's liability for warranty (see Supreme Court Decision 91Da21640 delivered on October 11

In the same purport, the court below is just in rejecting the defendant's argument that the plaintiff can claim the return of the price by claiming the cancellation of the sale and the reduction of the price, etc. between the non-party 2, who is the debtor at auction, pursuant to Article 578 of the Civil Code, and that he cannot claim the return of the dividend he received to the defendant, who is the distribution creditor, by unjust enrichment. There is no error in the misapprehension of legal principles as to the seller's warranty liability, such as the theory of lawsuit.

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

Justices Chocheon-sung (Presiding Justice)