In cases where a prior auction request has been withdrawn or the procedure has been revoked after the decision on double auction commencement, whether the general effect of seizure, such as the prohibition of disposal of real estate subject to the validity of a demand for distribution, in the prior auction procedure, shall be included (negative)

In the event that a registration of creation of a mortgage has been made on any real estate on which a ruling to commence a compulsory auction or to exercise a security right has already been made, and thereafter another creditor has filed a double decision to commence a compulsory auction, if the prior request for auction has been withdrawn or the procedure has been revoked, and the court continues the auction according to the ruling to commence a subsequent auction within the extent not violating the provisions of Article 91(1) of the Civil Execution Act, the said registration of creation of a mortgage may oppose the seizure by the ruling to commence the subsequent auction. Meanwhile, when a prior request for auction has been withdrawn or such procedure has been revoked after the double decision to commence a auction, the said registration of creation of a mortgage may continue the auction by transferring the prior auction that had been progress for the subsequent applicant for auction, and the result of the prior auction shall be succeeded to within the extent valid in the auction procedure according to the ruling to commence the subsequent auction: Provided, That Article 87(3) of the Civil Execution Act provides that where the subsequent auction procedure is in progress pursuant to the subsequent decision to commence a subsequent auction procedure, the completion period to demand for distribution shall be newly determined, and that it does not again be acknowledged in the auction procedure after the previous auction.

Articles 83(1) and (4), 87(2) and (3), 88, and 92(1) of the Civil Execution Act

Supreme Court Decision 79Ma417 delivered on February 7, 1980 (Gong1980, 12646) Supreme Court Decision 2000Da66010 Delivered on July 10, 2001 (Gong2001Ha, 1827)

Plaintiff (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm A&C, Attorneys Kim Tae-Gyeong et al., Counsel for the defendant-appellant)

Seoul Southern District Court Decision 2012Na12318 decided July 5, 2013

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. In the event that a registration of creation of a mortgage on a real estate on which a ruling to commence a compulsory auction or a ruling to commence a compulsory auction has already been rendered for the execution of a security right, and where a double auction has been made by another creditor after the said ruling, the said registration of creation of a mortgage may be set up against a seizure by the ruling to commence the subsequent auction unless the prior auction is withdrawn or the said procedure has been revoked, and the court continues the auction pursuant to the said ruling to the extent that it does not violate the provisions of Article 91(1) of the Civil Execution Act. Meanwhile, when a request for auction has been withdrawn or revoked after the double ruling to commence the auction, the said registration of creation of a mortgage may continue the auction by transferring the prior auction that had been progress until the time when the subsequent request for auction had been made for the auction, and the result of the prior auction shall be transferred to the extent valid after the subsequent ruling to the subsequent auction (see Supreme Court Order 79Ma417, Feb. 7, 1980; Supreme Court Decision 200Da6010, Jul. 10, 201).

2. According to the reasoning of the judgment below, in the prior auction procedure of this case, the plaintiff was established with respect to the real estate of this case after the defendants made a demand for each distribution based on the original executory payment order, and the plaintiff was made with respect to the subsequent auction order of this case, but the prior auction order of this case was withdrawn, and the subsequent auction procedure of this case was continued. In light of the above legal principles, the defendants' status of the creditor entitled to the demand for distribution should be maintained even if the defendants did not make a demand for distribution again in the subsequent auction procedure of this case. However, in the subsequent auction procedure of this case, the order of distribution between the plaintiff and the defendants should not be determined on the premise that the establishment of the right to demand distribution of this case goes against the prohibition of disposal of

Nevertheless, the court below held that each demand for distribution made by the Defendants in the preceding auction procedure of this case has an effect corresponding to the seizure, and that the Defendants maintained its effect in the subsequent auction procedure of this case, and that the Plaintiff and the Defendants, after the aforementioned demand for distribution, claim the validity thereof against the Plaintiff who was established the right to collateral security of this case. The Plaintiff and the Defendants judged that the remainder amount remaining after the right to collateral security of this case was equally distributed in proportion to the amount of the proceeds of the sale of the real estate of this case, and that the precedents on the validity corresponding to the seizure of the demand for distribution, cited by the court below, are related to the interruption of the extinctive prescription period for the demand for distribution, and are not invoked in this case. Accordingly, the judgment below

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 Kim Yong-deok (Presiding Justice)