Where the ownership of real estate is transferred to a third party after a provisional seizure registration is cancelled without any cause, and the auction procedure is completed at the request of another right holder such as the creditor of the third party, etc. thereafter, and the decision of permission for sale becomes final and conclusive and the purchaser has paid the sale price, whether the provisional seizure cancelled without cause is extinguished (affirmative in principle), and whether the third party shall comply with the request of the right holder to consent of the registration (negative in principle)

Even if the registration of provisional seizure was cancelled without any cause, the validity of provisional seizure is not immediately extinguished solely on the ground that the registration of provisional seizure was cancelled without any cause. However, when the ownership of the real estate was transferred to a third party after the registration of provisional seizure was cancelled without any cause, and the decision of permission for sale is finalized upon the application of other right holders, such as creditors of the third party, etc., and the successful bidder has paid the proceeds of sale, the validity of provisional seizure cancelled without any cause, unless the execution court takes the burden of provisional seizure from the auction procedure as a condition of special sale, unless the purchaser takes over the burden of provisional seizure in the auction procedure, and even if the third party has a interest in the registration procedure for the recovery of cancellation and consent is necessary, there is no reason to accept the request unless

Articles 91(2), 135, 144, and 268 of the Civil Execution Act, Article 59 of the Registration of Real Estate Act

Supreme Court Decision 2010Da97846 Decided September 13, 2012 (Gong2012Ha, 1664) Supreme Court Decision 2013Da28025 Decided December 11, 2014 (Gong2015Sang, 101)

K&C Co., Ltd. (Law Firm Freeboard, Attorneys Song Jin-si et al., Counsel for the defendant-appellant)

Defendant (Attorney Hwang Woo-soo, Counsel for defendant-appellant)

Daegu District Court Decision 2015Na16512 Decided June 2, 2016

The judgment below is reversed, and the case is remanded to the Daegu District Court.

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

A. The instant real estate was originally owned by Nonparty 1. On August 21, 1989, Nonparty 1 completed a provisional registration claim for ownership transfer (hereinafter “instant provisional registration”) on the ground of sales promise on the same day with respect to the said real estate to Nonparty 2 on the same day.

B. On September 16, 2003, a limited liability company specialized in the Kaman-si Securitization (hereinafter “Korea-China”) received the provisional attachment order of this case from the Daegu District Court and its Daegu District Court as the right to preserve the claim of this case against Nonparty 1, and the claim amounting to the non-party 1 as the right to preserve the claim was 327,747,87. Accordingly, the provisional attachment registration of this case was completed in the name of the tea.

C. On October 31, 2003, Han Han-man transferred the instant claim to the Plaintiff, and notified Nonparty 1 of the assignment of the said claim.

D. Nonparty 3 agreed to use the provisional registration of this case with Nonparty 1, while purchasing the instant real estate from Nonparty 1, and completed the supplementary registration before the provisional registration of this case on September 14, 2004, and completed the principal registration based on the provisional registration of this case. Accordingly, the provisional registration of this case was revoked ex officio on November 8, 2004.

E. As to the instant real estate, Nonparty 3 completed the registration of creation of a mortgage on September 14, 2004 with the maximum debt amount of KRW 350,000,000 and Nonparty 1, Nonparty 3, the debtor, on September 14, 2004. On February 24, 2009, Cheongsung C&D Co., Ltd. (hereinafter “Cheongsung C&D”) with the maximum debt amount of KRW 375,00,000,000 and Nonparty 1, Nonparty 2, the debtor.

F. The Defendant, as Nonparty 1’s children, completed the registration of transfer of ownership on July 16, 2010 on the instant real estate due to sale on July 15, 2010.

G. The Defendant received a decision to permit the sale of the instant real estate in the voluntary auction procedure conducted upon the request of Cheongsung C&D, and completed the registration of ownership transfer on May 3, 2012.

2. Based on the above facts, the lower court determined that the Defendant, as an owner of the instant real estate, was liable to express his/her intent to accept the procedure for the cancellation registration of the provisional seizure registration of this case, on the grounds delineated below.

A. The provisional registration of this case loses its effect upon the expiration of the exclusion period for exercising the right to complete the purchase and sale reservation right. Although there was an agreement between Nonparty 1 and Nonparty 3, etc. to use the provisional registration of this case which is null and void and to complete the additional registration of this case and the principal registration of this case are valid registration that conforms to the substantive relationship, the additional registration before the provisional registration of this case and the principal registration of this case, etc. are thereby valid registration that conforms to the substantive relationship, it cannot be set up against the Plaintiff, which has lost its effect as to the secured claim of the provisional seizure of this case, which is recognized as identical to the acquisition by transfer of the claim of this case, from the Gaykykdong, which completed the provisional registration of this case prior to the diversion of the invalidation registration of the provisional registration of this case. Therefore, the cancellation registration of the provisional registration of this case, which was completed ex officio due to

B. Meanwhile, since the registration of provisional seizure of this case was illegally cancelled at the time of the voluntary auction procedure of this case, the plaintiff could not participate in the distribution procedure, it cannot be deemed that the registration of provisional seizure of this case should have been cancelled in the above voluntary auction procedure.

3. However, the foregoing determination by the lower court is difficult to accept for the following reasons.

A. Although the provisional attachment registration for real estate was cancelled without any cause, the validity of provisional attachment is not immediately extinguished solely on the ground that the registration of provisional attachment was cancelled without any cause. However, when the ownership of the real estate was transferred to a third party after the provisional attachment registration was cancelled without any cause, and the decision of permission for sale becomes final and conclusive upon the application of other right holders, such as the creditor of the third party, etc., and the purchaser paid the proceeds of sale, the validity of provisional attachment cancelled without any cause unless the execution court takes the burden of the above provisional attachment as special sale condition in the above auction procedure (see, e.g., Supreme Court Decision 2013Da28025, Dec. 11, 2014). In addition, even if a third party with interest in the registration of provisional attachment in the cancellation registration procedure requires his/her consent, the third party is not obligated to comply with the request for consent unless the third party has an obligation under substantive law in relation to the person entitled to registration (see, e.g., Supreme Court Decision 2010Da978466, Sept.

B. Examining the above facts in light of the legal principles as seen earlier, even if it was impossible to oppose the Plaintiff by using the registration of invalidation, as the judgment of the court below, and the validity of the provisional seizure was not extinguished despite the registration of cancellation of the registration of provisional seizure of this case, the provisional seizure of this case was extinguished by the Defendant’s receipt of the sale permit decision of this case’s real estate, unless it is proved that the provisional seizure of this case was based on the special sale condition that the purchaser would take over the burden of the provisional seizure of this case in the subsequent auction procedure of this case, and the provisional seizure of this case’s real estate was extinguished by the Defendant’s cancellation of the registration of provisional seizure of this case’s illegal cancellation at the time of the voluntary auction procedure

Therefore, the defendant did not take over the burden of provisional seizure of this case. Thus, it cannot be said that the defendant has a duty to declare to the plaintiff the consent of the procedure for registration of cancellation of provisional seizure of this case.

Nevertheless, solely based on the circumstances indicated in its holding, the lower court determined that the Defendant was obligated to express his/her consent to the procedure for registering the cancellation of the provisional seizure registration of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the effect of provisional seizure in the auction procedure and the registration on the cancellation of provisional seizure, thereby failing to exhaust all necessary deliberations, thereby adversely

4. 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 Jae-hyung (Presiding Justice)