Whether provisional registration is subject to entrustment for cancellation in order to preserve the right to claim a transfer of ownership before and after the termination of senior mortgage due to confirmation of permission of successful bid (affirmative)

In the event that a provisional registration is made to preserve the right to claim ownership transfer registration after the establishment registration of a neighboring mortgage, and the decision to permit a compulsory auction becomes final and conclusive after the application for a compulsory auction, the successful bidder acquires ownership on the date of payment under the condition to cancel the payment of the successful bid price, and the above provisional registration is extinguished under Article 608 (2) of the Civil Procedure Act, and the above provisional registration cannot be set up against the establishment registration of a neighboring mortgage prior to the priority, and the right to the provisional registration is naturally extinguished, as well, the right to the provisional registration is also extinguished under Article 61 (1) 2 of the same Act.

Articles 608(2) and 661(1)2 of the Civil Procedure Act

Supreme Court Order 87Ma1169 Dated April 28, 1988

[Judgment of the court below]

Busan District Court Order 89Ra17 Dated August 25, 1989

The reappeal is dismissed.

The grounds of reappeal are examined.

In this case, after the establishment registration of neighboring mortgage was completed, provisional registration was made to preserve the right to claim ownership transfer registration under the name of the re-appellant, and the application for compulsory auction thereafter becomes final and conclusive, the successful bidder acquires ownership on the date of payment under the condition to cancel the non-payment of auction price and the above right to collateral security ceases to exist pursuant to Article 608 (2) of the Civil Procedure Act, and the provisional registration under the name of the re-appellant cannot be set up against the establishment registration of the above priority. Thus, this provisional registration also ceases to exist as a matter of course, and this provisional registration is also subject to cancellation and entrustment (refer to the judgment of the court below that the provisional registration under the name of the re-appellant was not cancelled on April 28, 198). Therefore, even if the provisional registration under the above opinion was made on the formal provisional registration, the court below's decision that the public official's application for registration of this case cannot be dismissed on the ground that the public official's right to claim ownership transfer registration of this case is unlawful and justified.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)