A. Whether a lawsuit of demurrer against the immediately third party may be allowed by a third party who acquired the ownership of real estate after the decision on commencing compulsory execution without excluding the executory power of debt title (negative)

B. Whether a third party purchaser of the immovables of provisional seizure may oppose the acquisition of ownership against the creditor of provisional seizure when the third party purchaser has repaid the preserved claim (affirmative)

C. Whether the decision to commence compulsory sale may be presumed to have been served on the obligor where the decision to commence compulsory sale was made and the entry has been registered (affirmative)

A. A lawsuit of demurrer against a third party against a compulsory execution is seeking the exclusion of compulsory execution by asserting the ownership of a third party other than the debtor with respect to the subject matter of execution or the right to restrain the transfer or delivery of the subject matter of execution, and therefore, the right which is the cause of the lawsuit can only be set up against the execution creditor. A third party who acquired the ownership after the decision of commencing compulsory execution is made shall be capable of setting up against the execution creditor. Even in cases where the execution claim has ceased to exist as a cause for repayment or any other reason, unless the executory power of the title of the debt has been excluded by a lawsuit of objection against a claim, the decision of commencing compulsory execution cannot be revoked, and the execution claim cannot be set up against

B. If the preserved claim is extinguished due to the repayment by the third party purchaser of the provisional attachment properties, the third party purchaser can oppose the acquisition of ownership even in relation to the provisional attachment obligee, and the compulsory execution by the provisional attachment obligee is ultimately enforced against the third party properties other than the debtor.

C. When there exists a decision to commence a compulsory auction, a court of execution shall serve the debtor ex officio and entrust a registry official with the entry of the reason therefor. Thus, if there is a decision to commence a compulsory auction and there has been a entry registration thereof, it shall be presumed that there has been delivery to the debtor, unless there are any special circumstances.

Articles 509, 706, 603, and 611 of the Civil Procedure Act

Supreme Court Decision 65Da70 Decided March 16, 1969, Decision 76Da216 Decided August 24, 1976

[Defendant-Appellant] Cho Young-gu, Attorney Cho Young-young and Lee Young-soo, Counsel for defendant-appellant-appellant-appellee-appellant-appellee-appellant-appellee-appellant

Defendant’s Attorney Lee Jae-soo

Seoul High Court Decision 80Na3457 delivered on January 28, 1981

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal by the plaintiff Lee Jong-young (the supplementary grounds of appeal by the plaintiff Lee Young-young, Counsel for the plaintiff-appellant) are examined as to the supplement of the above grounds of appeal.

(1) A lawsuit of demurrer against a third party against compulsory execution is seeking exclusion of compulsory execution by asserting ownership or a right to restrain transfer or delivery of an object of execution already commenced as a third party other than an obligor. Therefore, a third party who acquired ownership after a decision of commencing compulsory execution is rendered (see Supreme Court Decision 65Da70, Mar. 16, 1969) shall be entitled to oppose an execution obligee. Therefore, even in cases where an execution claim is extinguished due to repayment or any other cause, unless an executory power of the title of the obligation is excluded by a lawsuit of demurrer against a claim, the decision of commencing compulsory execution cannot be cancelled, and such decision cannot be asserted against an executory power of the third party, and thus, it shall not be allowed to seek exclusion of compulsory execution by a lawsuit of demurrer against the third party. (If an executory right is extinguished due to repayment of a third party acquired an object of provisional seizure, the third acquisitor can only be asserted against the execution obligee in relation to such provisional seizure, and ultimately compulsory execution cannot be excluded from compulsory execution based on the premise that a third party’s claim for compulsory execution against an executory obligation cannot be excluded from the title of execution.

(2) According to the records, the plaintiff's assertion that the court below had held that "the defendant applied for a compulsory auction for the real estate of this case with the claim amount of ten million won, and the decision to commence compulsory auction is made on July 21, 1979, and the registration of the entry is made on July 23, 1979, and the plaintiff acquired the ownership of only 10 million won of the above claim amount as the plaintiff passed a registration of transfer of ownership on the 24th of that month, but on the 31th of that month, the above claim amount of KRW 10 million of the above claim amount and KRW 10 million of the auction cost of KRW 80,000,000 won are legally repaid on behalf of the debtor, so the above application for compulsory auction by the defendant cannot be permitted for that purpose. Accordingly, the purport of its argument is that compulsory auction is excluded for the reason that the above decision to commence compulsory auction becomes effective, and if there is no special reason to request the debtor to register the compulsory auction ex officio, it shall be entrusted to the debtor.

In light of the above circumstances and the process of litigation, the court below did not confirm whether the decision to commence a compulsory auction of this case was served on the debtor, and did not err in the misapprehension of legal principles as to the measure that found the validity of the above decision to commence compulsory auction legally. The arguments are groundless.

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

Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young