After the decision to commence an auction by means of the right to collateral security, the effect of cancelling the registration of establishment of the right to collateral security due to the termination of the contract prior to the decision to permit the auction.

If a decision on commencement of auction had been made by means of a mortgage which exists in a substantial situation, even if the mortgage contract was terminated thereafter and the registration of creation was cancelled, the successful bidder who confirmed the decision on permission of auction due to the progress of the auction procedure and paid the auction price in full shall acquire the ownership of the auction

Cho Nam-nam

Thaicheon et al.

Seoul High Court Decision 63Na775 delivered on March 11, 1964, Decision 63Na775 delivered on March 11, 1964

The original judgment shall be reversed, and

The case is remanded to Seoul High Court.

We examine the Defendants’ agent’ grounds of appeal.

According to the court below's decision, comprehensively taking account of the contents of Gap's evidence No. 1 and the purport of the party's argument, the plaintiff set up a right to collateral security of KRW 141,39 with respect to the auction real estate of this case to non-party Lee Jong-chul, who is the right to collateral security, and the right to collateral security of KRW 141,39, Oct. 10, 1961, and the non-party Lee Jong-dong, who is the right to collateral security, applied for auction to the Seoul District Court on May 8, 1962, the above court's decision to grant a successful bid was made on May 18, 1962, and Kim Jong-dong, who is the successful bidder, had taken the procedure of transfer registration of the above ownership on June 4, 1962, and on June 5, 1962, the defendant sold the above auction real estate to non-party Lee Jong-cheon, who was the right to collateral security, and could not be seen as having been cancelled the above decision No. 1214.

However, if there was a decision of commencement of auction by means of the right to collateral which exists in the substance as seen above, it is reasonable to interpret that the successful bidder, whose decision of permission of auction became final and conclusive due to the progress of auction procedure and who paid the auction price in full, has lawfully acquired the ownership of the real estate at auction, even if the contract of collateral security was terminated after the house, and the registration of creation was cancelled after the house, even if the registration of application of auction was cancelled due to withdrawal of application of auction, objection against the decision of commencement of auction or objection against the decision of commencement of auction, or the decision of commencement was not revoked by appeal. Therefore, it is reasonable to interpret that the

Therefore, it is so decided as per Disposition by the assent of all participating judges except the assistant judge of the Supreme Court.

The dissenting opinion of the Supreme Court judges is as follows.

I think the auction by the execution of mortgage is the subject of the auction even if the auction court becomes the subject of the auction, but the right of realization of the mortgagee (creditor) against the real estate secured by the mortgage is exercised by the provisions of the law, i.e., the right of sale, even if the decision of commencement of auction was made, the contract of mortgage is terminated, and so long as the registration of creation of mortgage is cancelled, the right of sale on the mortgaged real estate of the mortgagee which is the basis of the auction is completely extinguished

Therefore, since the auction procedure conducted after the registration of creation of a mortgage was cancelled without the right of sale which is the basis for the auction, the contract cannot be legally effective, and as long as the contract is terminated lawfully and effectively between the parties to the establishment of a mortgage and the registration of cancellation of the registration of establishment of a mortgage is completed, the mortgagee can oppose the person who has an interest in the real estate thereafter with the extinction of the mortgage, and the interested person can not be an exception because the person who acquired the ownership from the successful bidder or the person who acquired the ownership from the successful bidder.

Therefore, under the same view, it is reasonable for the court below to dismiss the final appeal as it has cited the plaintiff's main claim.

Justices of the Supreme Court (Presiding Judge) Dog-Gyeong (Presiding Judge) Dog-Gyeong-Gyeong, Kim Jong-kung, Yang Gyeong-kak, Yang Ho-kak, Kim Ho-man, the Man-k