Whether there is a legal interest in seeking the declaration of consent for the execution of the procedure for recovery registration or the registration of recovery, where the decision of permission for sale of real estate which is the object of collateral security has been finalized as the auction procedure is in progress and the successful bidder paid out the sale price has been completed during the lawsuit seeking the execution of the procedure for recovery registration and the declaration of consent for the registration of recovery (negative)

The mortgage right is not immediately extinguished solely on the ground that the registration of the establishment of the neighboring real estate was completed without any cause. However, as a matter of course, the mortgage right that existed in the sold real estate is naturally extinguished upon the sale of the real estate during the auction procedure (see Articles 91(2) and 268 of the Civil Execution Act), since the registration of the establishment of the neighboring real estate was completed at the request of the right holder, such as another mortgagee, etc. with regard to the real estate which is the object of the neighboring mortgage, after the cancellation of the registration without any cause, and if the decision of permission for the sale was finalized

Therefore, in the course of a lawsuit seeking the execution of the procedure for recovery registration of the establishment of a neighboring mortgage and the declaration of consent for the registration of recovery, the decision of permission for sale became final and conclusive as to the real estate which is the object of the collateral security, and if the purchaser paid the sale price in full, the right to collateral security established on the sold real estate is naturally extinguished. Therefore, there is no legal interest in seeking the declaration of consent for the execution of the procedure for recovery registration of the establishment

Articles 91(2) and 268 of the Civil Execution Act

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

Patom Co., Ltd.

피터벡운트파트너 페르뫼겐스페어발퉁 게엠베하 (소송대리인 법무법인 통문 담당변호사 오인섭 외 1인)

Defendant 1 and two others (Law Firm Cheong-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na85095 decided February 7, 2013

Of the judgment of the court below, the part against Defendant 1 and Rate Construction Co., Ltd. and the part against Defendant 2 in the judgment of the court of first instance shall be reversed. The aforementioned part of the judgment of the court of first instance shall be revoked, and the lawsuit of this case shall be dismissed. Of the total cost of the lawsuit except the part resulting from participation in the lawsuit, the part arising between the Plaintiff and Defendant 1 shall be borne by Defendant 1; the remainder by the Plaintiff; the part arising between the Plaintiff and Defendant 2 and Defendant 1 shall be borne by Defendant 2; the part arising between the Plaintiff and the Defendant Rate Construction Co., Ltd.; and the remainder by the Plaintiff. Of the total cost of the lawsuit arising from participation, the part arising between the Plaintiff’s Intervenor and Defendant 1 shall be borne by Defendant 1; the remainder between the Plaintiff’s Intervenor and the Plaintiff’s Intervenor; and the part arising between the Plaintiff’s Intervenor and Defendant 2 shall be borne by Defendant 2; and the remainder by the Plaintiff’s Intervenor, respectively.

Judgment ex officio is made.

Even if the registration of the establishment of a neighboring real estate was completed without any cause, the mortgage right is not immediately extinguished solely on the ground that the registration was revoked on the basis of the forged related documents. However, since the mortgage that existed in the sold real estate is naturally extinguished upon the sale of the real estate during the auction procedure (see Articles 91(2) and 268 of the Civil Execution Act), the mortgage right which was cancelled without any cause shall also be extinguished without cause if the auction procedure was completed with respect to the real estate, which is the object of the neighboring mortgage, at the request of other right holders, such as the mortgagee, etc., and the decision of permission for sale was confirmed and the successful bidder paid the sale price in full (see Supreme Court Decision 97Da43406, Jan. 23,

Therefore, while the auction procedure is in progress regarding the real estate, which is the object of the collateral security, during the lawsuit seeking the execution of the procedure for the restoration registration of the collateral security and the declaration of consent for the registration of the restoration, which was cancelled without any cause, the decision of permission for sale becomes final and conclusive, and if the purchaser paid the sale price in full, the collateral security established on the sold real estate is naturally extinguished. Thus, there is no legal interest in seeking the execution of the procedure for the restoration registration of the collateral security

According to the records, the auction procedure was conducted with respect to each real estate listed in the separate sheet of the lower judgment, in which the registration of creation of each of the instant units of the mortgage existed, and the instant case was pending in the court of final appeal on June 20, 2013, and the purchaser paid the sales price in full on July 19 of the same year. Therefore, the Plaintiff no longer has a legal interest to seek approval for the execution of the procedure for recovery registration or for the declaration of consent for the registration of recovery on the ground that the registration of creation of each of the instant units of mortgage against the Defendants was revoked without any cause.

Therefore, among the judgment of the court below, the part against Defendant 1 and Do Forest Construction Co., Ltd. and the part against Defendant 2 are unlawful, each of them is reversed. However, this court's direct decision pursuant to Article 437 subparagraph 1 of the Civil Procedure Act is revoked, and the above part of the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed, and it is so decided as per Disposition by the assent of all participating Justices on the bench regarding the total costs of the lawsuit.

Justices Shin Young-chul (Presiding Justice)