When an execution officer removes an unregistered building, matters to be investigated and verified to determine whether the building subject to removal belongs to the debtor, and whether the creditor may be relieved by an objection against the execution, in case where the execution officer does not make the unregistered building subject to removal because the owner of the building is different from the debtor, on the ground that the owner of the building currently belongs to the debtor (affirmative)

An enforcement agency shall investigate and determine whether a building belongs to an obligor in the commencement of the execution, and the same applies to a case where an execution officer entrusted with the execution of a commission based on the decision on the authorization in the alternative execution of removal of a building actually removes a building. However, there is no registry as an external symbol indicating ownership in an unregistered building. Thus, when an execution officer removes an unregistered building, he/she shall investigate a construction permit or a construction contract document, etc. and determine whether a unregistered building subject to removal belongs to an obligor. In addition, an execution title, which forms the basis for the alternative execution, includes the reasons for determining that an unregistered building subject to removal belongs to an obligor as a ground for the removal obligation, and therefore, the enforcement officer should also confirm the content of the enforcement title.

Meanwhile, even if the name of the building owner was changed due to building permission for an unregistered building, if the original building owner had a form and structure that can be seen as an independent building under socially accepted norms at the time of change, if the original building owner acquired the ownership of the building, and the changed building owner is not the owner, not the owner of the changed building owner, and if the unregistered building subject to removal was not implemented on the ground that the former building owner is different from the debtor, it constitutes a case where the execution officer refused to be entrusted with execution or delayed execution due to a violation of the execution procedure, and thus, the obligee is entitled to remedy against the execution.

Article 389(2) of the Civil Act, Articles 16 and 260 of the Civil Execution Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Applicant (Attorney Hong Sung-hoon, Counsel for defendant-appellant)

lender Tourist Hotel Co., Ltd

Chuncheon District Court Order 2013 Ma522 dated November 13, 2013

The order of the court below is reversed, and the case is remanded to Chuncheon District Court Gangseo branch court.

The grounds of special appeal are examined.

1. In the commencement of the execution, the enforcement agency shall investigate and determine whether the subject matter of the execution belongs to the debtor by itself, and the same applies to the case where the execution officer entrusted with the execution of the act based on the decision of authorization in substitution for the removal of the building actually removes the building. However, since there is no registry as an external symbol indicating the ownership in the unregistered building, in conducting the removal of the unregistered building, the execution officer shall investigate the building permit or the construction contract form, etc., and determine whether the unregistered building subject to the removal belongs to the debtor. In addition, since the enforcement officer, which is the basis of the alternative execution, has written reasons to determine that the unregistered building subject to the removal belongs to the debtor as the ground for the removal obligation, the execution officer must confirm the contents of the enforcement officer's title.

On the other hand, even if the name of the building owner was changed due to building permission for unregistered buildings, if the original building owner had a form and structure that can be seen as an independent building under social norms at the time of change, if the building owner had already acquired the ownership of the building, and the new building owner is not the owner (see Supreme Court Decision 96Da54867, May 9, 1997, etc.). If the execution officer did not remove the unregistered building subject to removal on the ground that the existing building owner is different from the debtor and did not carry out the removal on the ground that the new building owner is not the debtor, it constitutes a case where the execution officer refused to receive delegation or delayed execution due to a violation of the execution procedure, and the creditor is entitled to remedy due to an objection against the execution.

2. The record reveals the following facts.

① On December 25, 2009, the other party entered into a contract for the construction of a wedding building (hereinafter “instant building”) on the part of another ground of the instant land, which was located on the ( Address omitted) 1,659 square meters (hereinafter “instant land”) at the time when the registration of the establishment of a neighboring mortgage in the name of the National Agricultural Cooperative Federation was completed. On February 9, 2010, the other party entered into a contract with D.S. Construction Co., Ltd. for the construction of a wedding building (hereinafter “instant building”) on the ownership, and entered into an extension permission from the East Sea Market on February 9, 2010, and D. D. S. Integrated Construction Co., Ltd started to construct the instant building at that time.

② On June 22, 2011, due to the aggravation of the other party’s capital, the real estate auction procedure was commenced on the instant land and the existing building at the Chuncheon District Court (Seoul District Court Decision 201Mo4727 and 6235 (Dupl) around 2011. At around that time, the construction of the instant building was suspended at approximately 65%, and on the other hand, on June 5, 2012, the name of the owner of the instant building was changed to the Tin Electricity Co., Ltd. (hereinafter “Tin Electricity”).

③ The special appellant completed the registration of ownership transfer on July 13, 2012 with regard to the instant land and existing buildings, as the highest price purchaser, in the above auction procedure.

④ On August 22, 2012, the Special Appellant filed a lawsuit claiming the removal, etc. of the instant building with the other party to the Chuncheon District Court Decision 2012Da3775 decided March 19, 2013, on the ground that “The building at the time the decision was rendered to commence the sale of the instant building is being constructed with approximately 65% of the construction rate, and the columns, roof, and main walls are completed, and the building requirements of the instant building are satisfied as independent real estate. Therefore, the other party, the original owner of the instant building, acquired the ownership of the instant building, and the changed owner of the instant building, who is the owner of the building, is not the owner of the instant building, shall not be the owner of the instant building,” and the judgment rendered by the court below that “the request for removal of the instant building against the other party to the Special Appellant, etc. against the instant building,” was dismissed” (hereinafter “instant judgment”).

⑤ In order to remove the instant building, on June 28, 2013, a special appellant was granted an execution clause with the instant judgment and applied for replacement with the other party as the respondent on July 2, 2013, 2013, the Chuncheon District Court Gangnam Branch Branch 2013Tz. 310, which received the order of authorization on July 19, 2013, and delegated the execution officer under the jurisdiction of the Chuncheon District Court to execute the removal based on the said order of authorization.

④ However, on September 6, 2013, the Nonparty, the enforcement officer of the Gangseo branch branch court of the Chuncheon District Court, prepared a protocol of impossibility of removing real estate on the ground that “the owner’s name is different from the other party who is the debtor in the decision on authorization as a chemical electricity” and did not remove the building of this case.

7) On October 18, 2013, the special appellant filed an objection to the enforcement of the instant case. On November 13, 2013, the lower court rendered an order to dismiss the objection against the enforcement of the instant case on the ground that “The substantive grounds, such as the foreign official title is inconsistent with the substantive rights, cannot serve as a ground for objection to enforcement.”

3. We examine these facts in light of the legal principles as seen earlier.

The above execution officer should have investigated and confirmed the building permit, the construction contract, and the judgment of this case, etc., and should have determined whether the building of this case belongs to the other party, but there is a high possibility that the building of this case was not belonging to the other party on the ground that the changed owner of the building was a chemical electricity, not the other party, and that the objection to the execution of this case constitutes a case where the execution officer's act of the above execution officer refuses to be delegated or delayed execution due to a violation of the execution procedure."

Therefore, the court below should have deliberated on whether the execution officer violated the execution procedure of this case, such as examining and verifying the above documents in order to determine that the building in this case is not belonging to the other party and not to remove the building. However, the court below dismissed the objection as to the execution of this case for the reasons stated in its reasoning without a hearing. Such decision of the court below is a violation of the Constitution that affected the trial by infringing the right of a special appellant to receive a trial according to legitimate procedures. The ground for special appeal pointing this out has merit.

4. 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 Min Il-young (Presiding Justice)