In case a senior mortgage ceases to exist by a compulsory auction, whether a right registered as a subordinate to that of a provisional registration exists (negative)

If a compulsory auction is executed by a compulsory auction after a provisional registration for preserving the right to claim ownership transfer registration, prior to the execution of a compulsory auction by compulsory auction, and there is a registration for the establishment of a mortgage to be extinguished by the auction, such provisional registration cannot be set up against a mortgage, and the right which is registered in a provisional registration corresponding to that which is extinguished by a compulsory auction shall also be extinguished.

Article 187 of the Civil Act, Articles 3, 5 of the Registration of Real Estate Act, Articles 25 and 33 of the Auction Act

Egrification chart

Normal pen notes

Busan District Court (87 Gohap1403)

The appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The original judgment shall be revoked.

The defendant shall implement the procedure to cancel the registration of cancellation of ownership transfer registration made on April 2, 1987 with the Busan District Court Southern Busan District Court Registry No. 304 on the real estate stated in the attached list to the plaintiff.

Litigation costs are assessed against all of the defendants in the first and second trials.

With respect to the instant real estate listed in the separate sheet, which was originally owned by Kim Jin-si, the Busan District Court, Busan District Court No. 4237, Mar. 31, 1986, issued a provisional registration of the Plaintiff’s right to claim the preservation of ownership transfer under the name of the Plaintiff on the ground of a pre-sale agreement on December 6, 1985. The principal registration of ownership transfer based on the provisional registration was completed under No. 4894, Mar. 31, 1987 by the same registry office, and the fact that the entry registration of ownership transfer based on the provisional registration was completed on August 13, 1986 and the registration of ownership transfer was completed on the said real estate on the ground of the auction on December 6, 1986, there is no dispute between the parties.

The plaintiff alleged that he sought cancellation of the above provisional registration on the ground that he completed the above provisional registration prior to the entry registration of the decision to commence compulsory sale of this case's real estate, on the ground that he had completed the above provisional registration in the name of the plaintiff, on the ground that he had completed the above provisional registration, but on the other hand, in full view of the purport of the oral argument in Gap evidence No. 1 which does not conflict with the establishment, as alleged by the defendant, the registration of establishment of a mortgage in the name of the non-party bank No. 1 as of March 12, 1984 was completed prior to the above provisional registration. On May 28, 1984, the registration of establishment of a mortgage in the name of the non-party bank No. 1 in the name of the non-party Korea Mutual Savings and Finance Company was revoked on the ground that the above provisional registration was cancelled on the ground of termination on February 23, 1987, but the registration of establishment of a mortgage in the name of the above Korea Mutual Savings and Finance Company No. 3950, which existed after the above provisional registration cannot be cancelled.

In addition, when adding the whole purport of the pleading to the statement in Gap evidence No. 1 above, the execution court of the above compulsory execution shall pay the successful bid price from the defendant who is the successful bidder of the above real estate, and shall regard the above provisional registration and its principal registration based thereon as the "entry of burdens on the real estate which the successful bidder did not accept" under Article 61 (1) 2 of the Civil Procedure Act and entrust the cancellation thereof according to the above legal principles, and accordingly, it can be known that each of the above registrations in the plaintiff's name was cancelled as of April 27, 1987, and thus, part of the plaintiff's allegation that the illegal cancellation was not accepted.

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the original judgment is just in conclusion, the plaintiff's appeal shall be dismissed as it is without merit, and the costs of appeal shall be assessed against the plaintiff who has lost.

Judges Lee Jin (Presiding Judge)