[1] Whether the opposing power of a subordinate right of lease is extinguished in a case where the senior mortgage becomes extinct prior to the payment date of the successful bid price (negative)

[2] The method of remedy by the successful bidder in a case where the opposing power of the subordinate right that was expected to be extinguished due to the extinguishment of the senior right to collateral security prior to the successful bid payment date is changed to exist without extinguishment

[1] In a tendering procedure for a real estate to exercise a security right, in the event that a prior collateral exists more than the right to set up against the plaintiff under Article 3 of the Housing Lease Protection Act, if the prior collateral is extinguished due to the successful bid, the subordinate right also lose its opposing power in order to guarantee the value of collateral secured by the prior collateral. However, in case where the prior collateral is extinguished due to the successful bid and the prior collateral is extinguished due to other reasons prior to the successful bid payment date, which is the time when the successful bidder acquires the ownership, the prior collateral has no prior collateral to be damaged due to the existence of the opposing right and thus, the opposing power of the right

[2] A successful bidder of a real estate was awarded with the knowledge that the opposing power of a subordinated right ceases to exist due to the existence of a senior collateral security, but where the burden of a successful bidder increases substantially due to the change to the existence of opposing power of a senior collateral security thereafter, a successful bidder may apply for cancellation of the decision of successful bidder pursuant to Article 639(1) of the Civil Procedure Act by analogy.

[1] Article 727 of the Civil Procedure Act, Article 3 of the Housing Lease Protection Act / [2] Article 639 (1) of the Civil Procedure Act, Article 3 of the Housing Lease Protection Act

Re-appellant

Daegu District Court Order 98Ra61 dated May 1, 1998

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

The grounds of reappeal are examined.

In the tendering procedure for the real estate in order to exercise a security right, where the priority right exists more than the right of lease that has the requisite to set up under Article 3 of the Housing Lease Protection Act, if the priority right terminates due to the successful bid, the subordinate right of lease will lose its opposing power in order to guarantee the value of the security secured by the prior collateral right. However, in case where the priority right terminates due to the successful bid and the successful bidder acquires ownership prior to the successful bid payment date, where the priority right terminates due to other reasons, the right of lease shall not extinguish because there is no priority right to receive damage to the value of the security due to the existence of the right of lease with opposing power. Meanwhile, the real estate has been awarded with the knowledge that the priority right has ceased to exist due to the existence of such priority right, but if the burden of the successful bid real estate increases remarkably due to the change of the opposing power of the right of lease due to the extinguishment of such priority right, the successful bidder can apply for the cancellation of the decision of successful bid in accordance with Article 639(1)

According to the records, prior priority is established with respect to the real estate in this case, the lease deposit amounting to KRW 3,750,000 is 50,000,000 with the maximum debt amount, and thereafter the lease deposit which satisfies the requisite against the following, the lower priority is established with the maximum debt amounting to KRW 45,00,000,000, and the lower priority right is established after the application of the lower priority right, and the Re-appellant was designated on March 26, 1998 and the payment period was determined as March 26, 1998, and the prior priority right was extinguished by the cancellation of the registration of the creation on March 24, 198. In this case, in accordance with the legal principles seen earlier, the lower priority right can seek revocation of the successful bid decision on the ground that the successful bid real estate becomes an opposing right burden due to the extinguishment of the first priority right.

Therefore, the time of determining the extinction of the opposing right is the successful bid date, and the court below's rejection of the application for revocation of the decision of successful bid permission of this case by the re-appellant for the reason that the prior collateral prior to the right to lease ceases to exist until the successful bid date, the decision of successful bid approval shall be made in case the prior collateral prior to the right to lease continues to exist with the right to collateral security as a result of the decision of successful bid approval, and there is an error of law that affected the conclusion of the judgment by misunderstanding

Therefore, the order of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)