[1] Whether the right to collateral security is extinguished in case where the target real estate was sold at an auction procedure after the registration of collateral security was cancelled illegally (affirmative)

[2] The method of remedy by the mortgagee where the right to collateral security is extinguished due to a successful bid of the target real estate after the registration of creation of collateral security was cancelled illegally

[1] Even if the registration of the establishment of a neighboring real estate was completed and the registration was cancelled without any cause by a forged registration document, the right to collateral security, which existed in the real estate, shall not be immediately extinguished. However, since the right to collateral security, which existed in the real estate, is naturally extinguished upon a successful bid in the auction procedure, the right to collateral security, which was cancelled without any cause, shall be extinguished by the auction procedure following the cancellation of the registration of the establishment of a neighboring real estate, and if the auction procedure was concluded after the successful bidder paid the successful bid price in full, if the decision of permission

[2] The mortgagee who was not apportioned at all the amount equivalent to the amount of the secured debt in the auction procedure for the real estate because the registration of the establishment of a neighboring mortgage was illegally cancelled and the registration of the restoration was not completed on the ground that the registration of the establishment of a neighboring mortgage was not completed on the ground that he was not granted the amount of the secured debt in the auction procedure for the real estate, can only seek a payment of the amount of dividends if he had been paid the dividends within the scope of the dividend, and may not seek a declaration of consent against the present owner for the registration of restoration

[1] Articles 608(2) and 728 of the Civil Procedure Act / [2] Article 741 of the Civil Act, Articles 608(2) and 728 of the Civil Procedure Act

[1] [2] Supreme Court Decision 97Da35771 delivered on November 25, 1997 (Gong1998Sang, 14)

e-return

Distribution of Co., Ltd.

Seoul High Court Decision 97Na57964 delivered on April 29, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Even if the registration of establishment of a neighboring real estate was completed and the registration was cancelled without any cause, the right to collateral security is not immediately extinguished solely on the ground that the registration was forged. However, since the right to collateral security, which existed in the real estate, is naturally extinguished upon a successful bid in the auction procedure (see Articles 608(2) and 728 of the Civil Procedure Act), the right to collateral security, which is the object of collateral security, was held in the auction procedure following the cancellation of the registration of establishment of a neighboring mortgage without any cause, and if the successful bidder paid the successful bid price in full, the right to collateral security cancelled without any cause shall be deemed extinguished. The right to collateral security, which was cancelled due to the cancellation of the registration of establishment of a neighboring mortgage and did not have yet been registered of recovery, may only seek payment of the amount of collateral secured in the auction procedure against the person who was actually distributed at the above auction procedure if the right to collateral security had not been cancelled within the limits of dividends (see Supreme Court Decision 207Da5757, Nov. 27, 1997).

As duly determined by the court below, the registration of the establishment of a mortgage in the name of the plaintiff on December 6, 190 was cancelled by the seals, etc. forged by the plaintiff on December 6, 199. On the same day, the registration of the establishment of a mortgage in the name of the non-party 1 and the registration of the establishment of a mortgage in the name of the non-party 1 on March 2, 1991 was completed, and thereafter the plaintiff filed a lawsuit seeking the restoration of the registration of the establishment of a mortgage in the name of the plaintiff 1 on March 27, 1991, which was cancelled on November 6, 1992. On the other hand, the decision of the court below was just because the decision of compulsory commencement of the sale of the land in this case was made on April 23, 1992 upon the above non-party 1's application, and it was not erroneous in the registration of the establishment of the auction on the ground that the plaintiff 1 had already been cancelled on December 28, 1992.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)