In case where a person having the right to provisional registration for security falling under Article 16 (2) of the Provisional Registration Security Act fails to report a claim within the period set by the court of execution, whether the person having the right to receive a distribution of the proceeds of sale is deprived (affirmative)

Article 16 of the Provisional Registration, Security, etc. Act provides that where an order to commence an auction, etc. of any real estate on which a provisional registration concerning the transfer of ownership is made, if such provisional registration is a provisional registration for security, the court shall notify the person having the right to the provisional registration of the contents thereof and the existence, cause and amount of the claim, and, if the provisional registration for security is not a provisional registration for security, a reasonable period to report the details thereof to the court (Paragraph (1)). If the right to the provisional registration for security already made before the seizure is extinguished by sale, the creditor may receive a delivery of the proceeds of sale or a repayment (Paragraph (2)). Thus, if the person having the right to the provisional registration for security falling under Paragraph (2) fails to report the claim within the period set by the court of execution, the court shall lose the

Article 16 of the Provisional Registration Security Act, Articles 148 and 154 of the Civil Execution Act

Plaintiff (Law Firm Rate, Attorneys Shin Sung-sung et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others (Attorney No. 1 et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na56710 decided March 14, 2007

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

In full view of the adopted evidence, on July 25, 2003, when the provisional registration under the name of the court of execution is a provisional registration for security, the court below sent to the plaintiff a written peremptory notice stating the content and existence of the claim, the cause and amount thereof, and, in the case of a provisional registration for security, until September 29, 2003, which is the completion period for the demand for distribution, and only when the provisional registration for security was made within the above period, the plaintiff may participate in the distribution. In this case, the court of execution sent a written peremptory notice stating that the report of the claim should be made within the above period, and on August 7, 2003, the plaintiff sent the written peremptory notice to the plaintiff by registered mail to the plaintiff's domicile on the plaintiff's registry. After that, the court of execution extended the completion period for demand for distribution on February 4, 2004, and again sent a written peremptory notice for the report to the plaintiff's domicile on the plaintiff's registry, the plaintiff's demand for distribution cannot be viewed as lawful by the above provision and the auction procedure.

Article 16 of the Provisional Registration Security Act provides that where an order to commence an auction, etc. of any real estate on which a provisional registration concerning the transfer of ownership is made, if such provisional registration is a provisional registration for security, the court shall notify the person holding the provisional registration of the details thereof and the existence, cause and amount of the claim, and, if the provisional registration for security is not a provisional registration for security, the court shall notify the court of the fact that he/she reports the details thereof within a reasonable period of time (Paragraph 1). In cases where the right to provisional registration for security completed prior to the registration for seizure ceases to exist by sale, the creditor may receive a delivery of the proceeds of sale or a repayment (Paragraph 2). Thus, if the person holding the provisional registration for security falling under paragraph 2 of the above Article fails to report the claim within the period determined by the court of execution,

The judgment of the court below did not contain some inappropriate statements on its reasoning, such as making a statement as to the demand for distribution and an expression as to the reporting of a claim by the person having the right to a provisional registration as to the person having the right to a provisional registration. However, it is clear that the notice to report the above claim against the person having the right to a provisional registration can be made in such a way as deemed reasonable as one of the highest in civil execution procedure. Furthermore, it is reasonable that the plaintiff, claiming that he is a person having the right to a provisional registration falling under the above paragraph (2), failed to report within the report period as determined by the court of execution, thereby losing the entitlement to receive dividends in the execution procedure of this case. The peremptory notice to report the claim against the plaintiff is legitimate, and the judgment

Therefore, all appeals are 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 Park Ill-sook (Presiding Justice)