Whether the provisional attachment decision issued only on the section for exclusive use shall have effect on the site ownership before only the preservation of ownership of the section for exclusive use has been completed and the registration of the share of the site has been made (affirmative with qualification)

In light of the legal principles as to accessory property and principal property relations under Article 100(2) of the Civil Act, not only are related to each other, but also between rights. The disposition under the above provision should be applied not only to the alteration of rights by a disposal act but also to the case where the legal relationship of principal property arises by a disposal under public law such as seizure. The main text of Article 358 of the Civil Act that the effect of a mortgage extends to accessory property is a theoretical foundation with Article 100(2) of the same Act, and Article 20(1) and (2) of the Act on the Ownership and Management of Aggregate Buildings recognizes that the right to use site of a sectioned building is subordinately indivisible with the exclusive ownership. In light of the above, the right to use site of a sectioned building is limited to the exclusive ownership registration for the exclusive ownership and the decision of provisional seizure is made only before the registration on the share of the site is made, barring special circumstances such as where the right to use site has been stipulated by the regulations to separate the right to use site.

Articles 100(2) and 358 of the Civil Act, Article 20 of the Act on the Ownership and Management of Aggregate Buildings, Article 276 of the Civil Execution Act

Plaintiff

Defendant 1 and one other

Seoul High Court Decision 201Na14146 decided May 1, 201

Suwon District Court Decision 2005Na1248 delivered on April 20, 2006

The part of the judgment of the court below against the limited company specializing in the securitization of the defendant Han-gu is reversed, and that part of the case is remanded to the Jung-gu District Court Panel Division. The appeal against the defendant 1 is dismissed. The costs of appeal against the defendant 1 are assessed against the plaintiff.

1. First, we examine the grounds of appeal against Defendant 1.

In full view of the admitted evidence in its judgment, the court below recognized Defendant 1 as a legitimate lessee with a fixed date with respect to the Gyeonggi-do (Secheon-gun omitted) (hereinafter “instant apartment”) newly constructed by ○○○○○○ (hereinafter “○○○○○”) Co., Ltd. (hereinafter “the instant apartment”), and compared with the records, the court below did not make an incomplete deliberation in the process of fact-finding and find any error of misconception of facts against the rules of evidence.

In addition, according to the records, it cannot be deemed that the non-party 1, who entered into a lease agreement with the above defendant directly or on behalf of the above defendant, as the husband of the above defendant, was acting on behalf of the above defendant ○○○○. Thus, the above defendant's lease agreement cannot be deemed as a self-contract or both representation, and there is no error in the misapprehension of legal principles as to self-contract or both representation.

All of the appeals disputing this cannot be accepted.

2. Next, we examine the grounds of appeal against the Defendant Han-do Specialized in the Securitization of the Telecommunications Technology (hereinafter “Defendant Company”).

A. The measure of the court below

According to the judgment of the court below and the reasoning of the court of first instance cited by it, since the plaintiff was decided on December 2, 1998 as to the apartment of this case which was not newly constructed by ○○○○○○ on the basis of the credit for loans to ○○○○○○○, the court below rejected the plaintiff's right of ownership registration as to the apartment of this case on the 23th of the same month based on the provisional attachment order, and the provisional attachment registration as to the 3rd of the same day was made on January 9, 1999, and the remaining part of the apartment of this case was registered as the site of this case on January 6, 199, and the remaining part of the 3rd of the sale price of this case was 6th of the same day to 00,000 won after the transfer registration of ownership as to the 1/2nd of the non-party 2 and the non-party 3's 1/6th of the same day to 1,500,0000 won.

B. Judgment of the Supreme Court

However, we cannot agree with the above decision of the court below for the following reasons.

Article 100 (2) of the Civil Act provides that "the accessory shall follow the disposal of the principal thing." The legal principles as to the relation between the accessory and the principal thing shall apply not only to one another, but also to one another, and the above provisions shall apply not only to the alteration of rights by a disposal act, but also to the case where the relation of rights of the principal thing arises from the disposal under public law such as seizure. The main provision of Article 358 of the Civil Act that the effect of a mortgage extends to the accessory thing is the same as the theoretical basis of Article 100 (2) of the Civil Act. According to Article 20 (1) and (2) of the Act on the Ownership and Management of Aggregate Buildings, the right to use the site of a sectioned building is recognized as the subordinate in entirety with the exclusive ownership. In light of the above provisions, the effect of the provisional seizure decision on the exclusive ownership only before the ownership registration is completed and the registration on the site is made, barring special circumstances such as making it possible to separate the right to use the site.

Therefore, in this case, the plaintiff who received the decision of provisional seizure on the part of the above apartment building by subrogation of ○○○○, the debtor, completed the registration of preservation of ownership on the part of the above apartment building by subrogation of ○○○○, and the provisional seizure was registered only on the part of the above building, but the provisional seizure is also effective on the right to a site. Therefore, the auction court should have distributed the proceeds from the sale of the above apartment building to the plaintiff, the creditor of provisional seizure

Nevertheless, under the premise that the provisional attachment against the section for exclusive use of the apartment of this case does not have the right to use the site, the court below erred by misapprehending the legal principles as to the scope of validity of provisional attachment and Article 100 (2) of the Civil Act, so long as the provisional attachment registration against only the section for exclusive use of the apartment of this case was made, the plaintiff shall not have the right to receive dividends as to the proceeds from the sale of the site of this case. The judgment of the court below shall not be reversed because it erred by misapprehending the legal principles as to the scope

3. Therefore, the part of the judgment of the court below against the defendant company is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal against the defendant 1 is dismissed, and the costs of appeal against the defendant 1 are assessed against the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Jeon Soo-ahn (Presiding Justice)