Whether or not a successful bidder who has paid the successful bid price can contest the acquisition of ownership as repayment of the floating mortgage obligation.

If a decision to commence an auction was made on the basis of the right to collateral which exists in a substantial situation, even if the obligation is extinguished by repayment, etc. of the subsequent mortgage, if the successful bidder has paid the successful bid price, the successful bidder can not dispute the acquisition of ownership.

Article 3 of the Auction Act

Supreme Court Decision 71Da1310 Decided September 28, 1971 Decided 63Ma152 Decided May 20, 1964

[Defendant-Appellee] Plaintiff 1 et al.

Defendant

Seoul High Court Decision 79Na1322 delivered on January 31, 1980

The part on the plaintiff's conjunctive claim in the original judgment is reversed, and that part is remanded to the Seoul High Court.

The remaining appeals by the plaintiff (the main appeal) are dismissed, and the costs of appeal are assessed against the plaintiff.

The grounds of appeal by the Plaintiff’s attorney are examined.

With respect to No. 1:

According to the reasoning of the judgment below, the court below rejected the plaintiff's above assertion on the following grounds: since each establishment registration of a collateral for the real estate owned by the plaintiff was completed by the non-party 1 and the non-party 3, who is the plaintiff's wife, by stealing the plaintiff's seal without the plaintiff's consent, the registration of invalidation of the cause is complete; therefore, the evidence presented in the judgment of the court below, which corresponds to the plaintiff's assertion that the registration of the ownership transfer due to the successful bid is also null and void, cannot be trusted, and there is no other evidence to acknowledge it. Rather, according to the evidences, the court below rejected the plaintiff's above assertion on the ground that the plaintiff knew his debt relationship with the non-party 1 and the non-party 2, who is his wife, and completed the registration of the ownership transfer due to the successful bid, and there is no error of law by misjudgmenting the value judgment of evidence.

With respect to the second ground:

If the commencement of auction was decided on the basis of the right to collateral which exists in substance, under the Auction Act, even if the obligation of collateral security was extinguished by the repayment, etc. after the auction procedure is in progress, if the successful bidder has paid the successful bid price, the acquisition of ownership by the successful bidder shall not be contested (see, e.g., Supreme Court Decisions 71Da1310, Sept. 28, 1971; 63Ma152, May 20, 1964). In the same purport, even if the plaintiff's above collateral security obligation against the above non-party 2 was extinguished during the auction procedure, the court below is justified in holding that the registration of transfer of ownership by the decision of successful bidder cannot be null and void, and there is no error of law by misunderstanding the legal principles as to the validity of the registration of transfer of ownership due to the successful bid.

With respect to the third point:

According to the reasoning of the judgment, the court below recognized the fact that the case of voluntary auction application by the Daejeon District Court 77Ra466 decided August 25, 197, which was filed by the non-party 1, the mortgagee, was filed by the non-party 1. The records show that the above fact-finding of the court below is justified, and it cannot be said that there was a brut like the theory of lawsuit, and therefore there is no argument.

With respect to the fourth point:

같은 판결 이유에 의하면 원심은 피고가 원고의 처인 소외 3을 통하여 원고에게 원고 소유의 본건 부동산을 담보제공하면 위 소외 3을 채무자로 하여 소외 2로부터 금 2,500,000원을 빌려 주겠다고 거짓말하여 이를 맏은 원고로 하여금 본건 부동산에 관하여 위 소외 2 명의로 채권 최고액 금 4,000,000원의 근저당권설정등기를 경료케 하고, 위 소외 2로부터 금 2,500,000원을 빌린 후, 위 소외 3에게 교부한 금 150,000원 이외는 모두 피고 자신이 사용해 놓고도 위 소외 2로 하여금 위 근저당권에 기한 임의경매를 신청토록 하여 그 자신이 또한 본건 부동산을 경락 받음으로써 원고가 그 소유권을 상실하게 되었으니 피고에게 위 불법행위로 인한 손해배상으로 1977.9.경의 본건 부동산의 싯가 상당인 금 12,484,089원의 지급을 구한다는 원고의 예비적 청구부분에 대하여, 원심 설시 증거만으로는 피고의 불법행위로 원고가 본건 부동산의 소유권을 상실하였다고 인정할 수 없고, 달리 이를 인정할 증거없다 하여 원고의 위 예비적 청구부분을 배척하고 있음이 분명하다.

However, with respect to the real estate owned by the plaintiff through the above non-party 3, who is the right to collateral security, the plaintiff lost ownership due to the non-party 2's voluntary application for auction, and the registration of ownership transfer was duly established by the court below. If the testimony of the non-party 3 and the statement of No. 13-2,3, and No. 2 were not adopted by the court below as a result of the examination of the criminal records of the court of first instance, the defendant borrowed 2,500,000 won from the third party, which should be used for the above 15,00,000 won, or which should be used for the above 15,00,000 won for the above 10,000 won for the above 10,000 won for the above 30,000,000 won for the above 30,000 won for the above 30,000,000 won for the above 30,000 won for the above real property.

Therefore, the appeal of this case is with merit as to the plaintiff's conjunctive claim, and the part is reversed and remanded to the Seoul High Court which rendered the judgment below. The remaining part (the part concerning the plaintiff's main claim) is without merit, and the costs of the appeal are assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Han-jin (Presiding Justice)