[1] Even if the possessor commenced possession before seizure, he/she becomes the other party to the order of delivery of real estate

[2] In a case where a seizure is registered as an execution of mortgage which takes precedence over the right to use, whether the possessor is the party to the order of delivery even if the possession by the above right to use was commenced prior to the seizure (affirmative)

[1] In light of the purport of Article 647(1) of the Civil Procedure Act that intends to facilitate delivery of real estate to a successful bidder through a simple and speedy procedure to protect a successful bidder, in cases where the possessor or possessor is in close relationship with the debtor or owner, such as where the debtor or owner is a person with a close relationship, and thus the possessor’s refusal of delivery is not permissible under the good faith principle because the possessor is the same as the debtor or owner. In cases where the possessor is deemed to have commenced possession solely with the debtor or owner for the purpose of evading delivery execution or interfering with execution, and thus, the possessor is deemed to have no legitimate interest in possession of the real estate, even if the possessor’s possession

[2] The right to use is extinguished along with the extinction of a mortgage which takes precedence over the above right by auction. Thus, in a case where the seizure was registered as a result of the execution of the above mortgage, even if the possession by the above right to use was done prior to the seizure, the above right to use was deemed as the time of the seizure, and all thereafter, the possessor of the real estate, who started possession after the seizure took effect, shall be the party to the order of delivery.

[1] [1] Article 647 (1) of the Civil Procedure Act / [2] Article 647 (1) of the Civil Procedure Act

[1] Supreme Court Decision 73Ma734 decided Nov. 30, 1973 (No. 21-3, 210) Supreme Court Decision 96Da30786 decided Apr. 24, 1998 (Gong1998Sang, 1434)

Namyang Machinery Corporation

3.7

Changwon District Court Order 2000 Doz. 1246 dated August 8, 2000

1. Revocation of the order of the court below

2.The respondent shall deliver to the applicant any real estate, machinery and structure listed in the Schedule.

1. According to the record, on March 6, 200, the appellant received a successful bid amount of KRW 1.55 billion in real estate, machinery, apparatus, and structure (hereinafter referred to as "the product of this case") recorded in the separate sheet for the appraisal of approximately KRW 1.344 billion in the real estate auction case (hereinafter referred to as "the auction of this case") from the Changwon District Court Jinju Branch of the Changwon District Court on March 6, 200, and paid the full successful bid amount to the above court on July 11 of the same year.

After the appellant paid the above successful bid price, the appellant filed an application with the lower court for an order to deliver the instant goods as 200 Ma1246, which was the Respondent, but the lower court dismissed the above application by the appellant on August 8, 200, and the appellant appealed against the party member.

2.Therefore, Article 728, Section 1 of the Civil Procedure Act provides that "the court may order the successful bidder to deliver the immovables to the successful bidder at the request of the successful bidder within six months after the payment of the price, the debtor, the owner or the possessor of the immovables commencing possession after the seizure takes effect, unless the possessor has the right to oppose the successful bidder, except in case where the possessor has the right to oppose the successful bidder." The purport of the above provision is to facilitate the delivery of immovables to the successful bidder through a simplified and rapid procedure for the protection of the successful bidder.

Therefore, in light of the purport of the above provision, in cases where the possessor is in close relationship with the debtor or owner, such as where the debtor or owner is a person in bad faith or a person in special interest, and it is deemed that the possessor’s refusal of delivery is not permissible under the good faith principle because the possessor is the same as the debtor or owner, the possessor is deemed to have no legitimate interest in possession of real estate solely because he/she conspired with the debtor or owner for the purpose of evading delivery execution or interfering with execution, the possessor shall be deemed to be the counter-party to the order of delivery even

However, according to the records of this case and the Respondent's submission of the above provisional seizure, it was found that the above Respondent was not the owner of the above 1's mortgage and the creditor bank of this case, and that the above Respondent was not the owner of the above 1's mortgage, and that the Respondent was the owner of the above 1's mortgage, and that the Respondent's Respondent's Respondent's Respondent was the owner's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Respondent's Lessee's Respondent's Respondent's Respondent's Lessee's Respondent's Respondent's Lessee's Lessee's Lessee's Respondent's Respondent's Lessee's Respondent's Lessee's Lessee's Lessee's Lessee's Lessee's Lessee's Lessee's Lessee's Lessee's Lessee's Lessee's Lessee's Lessee's Bad's 19.

3. If so, the respondent should deliver the object of this case to the appellant who is the applicant. Since the appellant's appeal of this case is well-grounded, the order of the court below shall be cancelled and the respondent shall be ordered to order the appellant who is the applicant to deliver the object of this case and the decision shall be made as per the disposition.

Judges Lee Jong-young (Presiding Judge)