[1] The case where the limited real right is not extinguished due to confusion

[2] Where several co-owned shares are acquired by the execution obligor in sequential order, and the execution obligee sells only a part of the co-owned shares when the execution obligee executes compulsory execution as to the whole co-owned shares of the execution obligor, where there is no possibility for the execution obligee to receive dividends even from the proceeds of sale of the remaining shares, whether the auction for the whole co-owned shares constitutes an auction where the remaining part of

[1] In cases where ownership of a thing and other real rights belong to the same person, the limited real rights shall be extinguished by confusion. However, in cases where it is deemed necessary to continue the limited real rights for the benefit of the principal or a third party, the limited real rights shall not be extinguished by confusion.

[2] If an execution obligor acquires several co-ownership in sequential order, and an execution obligee executes compulsory execution on the whole co-ownership of an execution obligor's co-ownership, even if the legal relationship between each of the several co-ownership shares differs, it is a compulsory execution against one object. Thus, even if there is no possibility for remaining shares if there is no possibility for an execution obligee to sell only some of the co-ownership shares, if there is a possibility that the execution obligee will receive a dividend from the proceeds of sale

[1] Article 191 of the Civil Act / [2] Article 102 of the Civil Execution Act

[1] Supreme Court Decision 98Da18643 Decided July 10, 1998 (Gong1998Ha, 2100), Supreme Court Decision 98Do4022 Decided April 13, 1999 (Gong1999Sang, 956) / [2] Supreme Court Order 2012Ma379 Decided December 21, 2012

Creditors

Changwon District Court Order 2012Ra8 dated May 4, 2012

The order of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of reappeal are examined.

1. As to the misapprehension of legal principle as to confusion

In principle, in cases where the ownership of any article and other real rights belong to the same person, such limited real rights shall be extinguished by confusion, but it shall not be extinguished by confusion in cases where it is deemed necessary to continue the limited real rights for the benefit of the principal or a third person (see, e.g., Supreme Court Decisions 98Da18643, Jul. 10, 1998; 98Do4022, Apr. 13, 1999).

In the same purport, the court below is just in holding that the right to collateral security of Nonparty 1, which was set on a partial share of the auction object of this case, does not extinguish due to confusion, and there is no error of law by misapprehending the legal principles as to confusion as alleged

2. As to the misapprehension of legal principles as to Article 102 of the Civil Execution Act

A. An executor acquires several co-ownership shares in successive order by an executor, and where an execution creditor executes compulsory execution on the whole co-ownership of an executor’s co-ownership, even if the legal relationship between each of the several co-ownership shares differs, this is a compulsory execution against a single subject matter. Thus, even if there is no possibility for a creditor to sell only some of the co-ownership shares, if there is no possibility for an execution creditor to receive dividends even from the proceeds of sale of the remaining shares, it shall be deemed an auction at which an auction on the whole co-ownership share is anticipated (see, e.g., Supreme Court Order 2012Ma

B. According to the reasoning of the order of the court below and records, (1) non-party 2 transferred shares No. 3, No. 5, No. 1, No. 5, No. 2, No. 3, No. 5, No. 2, No. 3, No. 86, No. 1, No. 4, No. 86, No. 1, and No. 2, No. 5, No. 86, No. 1, No. 3, and No. 2, No. 86, No. 1, No. 4, and No. 86, No. 5, No. 1, No. 46, No. 1, and No. 2, No. 865, No. 3, and No. 1, No. 465, No. 1, and No. 2, No. 865, No. 1, 2007).

C. Examining the above facts in light of the legal principles as seen earlier, Nonparty 2 acquired shares No. 14 and No. 18, and the re-appellant’s application for a compulsory auction for all shares No. 14 and shares No. 18, upon the provisional attachment for shares No. 14 and the provisional attachment for shares No. 18, the auction of this case initiated by Nonparty 2 for the compulsory auction for all shares No. 36,752/65,000, which consist of shares No. 36,752/65,000 of the above shares, is an auction for one object. The auction of this case is 31,736,137 won equivalent to shares No. 14, the total maximum debt amount of the right to collateral security for shares No. 14,51,712,512, which takes precedence over the claims of the creditor. Thus, even if the re-appellant is unlikely to sell only shares no more than 14,000,000 won, it is likely to receive dividends as a whole auction of this case.

D. Nevertheless, the court below determined that the auction of this case was an auction in violation of Article 102 of the Civil Execution Act and revoked the decision of the court of first instance that approved the decision of permission for sale on the ground that there is no possibility of remaining in the share No. 14. Thus, the court below erred by misapprehending the legal principles on Article 102 of the Civil Execution Act, which affected the conclusion of the

3. Conclusion

Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)