Where an existing building is destroyed and a new building is constructed, whether the registration of the existing building is valid as a registration of the new building (negative)

Article 186 of the Civil Act, Articles 40(1) and 43 of the Registration of Real Estate Act

Supreme Court Decision 75Da2211 Decided October 26, 1976 (Gong1976, 9453) Supreme Court Decision 80Da441 Decided November 11, 1980 (Gong1981, 13396) Supreme Court Decision 91Da39184 Decided March 31, 1992 (Gong192, 1414)

Creditors

The debtor

Seoul Central District Court Order 2012Ra242 dated July 18, 2012

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

The grounds of reappeal are examined.

In a case where a new building has been destroyed or demolished and a new building has been built, even if there are similar pages to its materials, location, structure, and other sides, the registration cannot be deemed valid as a registration for the new building (see, e.g., Supreme Court Decisions 75Da2211, Oct. 26, 1976; 80Da441, Nov. 11, 1980; 91Da39184, Mar. 31, 1992).

According to the facts acknowledged by the court below, the building on the registry of this case was removed by the construction of a road in 1968, and the debtor could not obtain a new construction permit due to the relation which is a cultural property protection area, and thus, he newly constructed the existing building at the present place with the approval of the relocation of the building of this case. However, registration on the existing building was not completed and used as it is without completing registration on the register.

As above, the building on the registry of this case was already demolished, and the registration of this case cannot be deemed valid as a registration of the existing building of this case since it cannot be deemed identical to the existing building of this case. Thus, even if auction proceedings are conducted based on such registration, the decision to commence the auction of this case is unlawful, and the request for auction should be dismissed, as long as the purchaser is unable to acquire ownership.

Nevertheless, the court below revoked the decision of the court of first instance that dismissed the request for auction on the ground that the real estate register of the building on the registry was valid because the building on the registry was removed and the building on this case was removed and relocated, and even if the building on this case did not coincide with the entries on the real estate registry, the real estate register of the building on the registry was stated on the building on the registry, and the decision of the court of first instance that dismissed the request for auction. Thus, the court below erred by misapprehending the legal principles as to the identity of the building on the registry and the validity of registration, which

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 Park Poe-dae (Presiding Justice)