Where a compulsory auction is carried out for any real estate for which a registration of establishment of a mortgage and a provisional registration have been made successively, the effect of a provisional registration and a provisional entrustment for cancellation are made if dividends have been distributed.

In cases where a compulsory auction has been implemented by an application for a compulsory auction registered after a provisional registration for preserving a right to claim ownership transfer registration, in order to take precedence over such provisional registration at the time of a compulsory auction, and in cases where there exists a registration of establishment of a mortgage to be extinguished by the auction, such provisional registration cannot be set up against a mortgage, and the right to a provisional registration to be registered lower than that extinguished by a compulsory auction is extinguished, so the provisional registration is subject to a request for cancellation as "entry of a burden on real estate which a successful bidder has not taken over" under Article 61 (1) 2

Articles 608(2) and 661(1) of the Civil Procedure Act, Article 3(2) of the Auction Act

Re-appellant

Seoul Central District Court Order 80Ra195 Dated September 8, 1980

The reappeal is dismissed.

The re-appellant's grounds for re-appeal are examined.

According to the reasoning of the order of the court below, since the above real estate was sold to the successful bidder of the above real estate under the name of the court of execution on May 9, 1978, the registration of establishment of a mortgage was completed as the mortgagee of the above real estate, and the provisional registration was completed on May 10, 200, under the name of four other than the above provisional registration, and the registration of establishment of mortgage was completed on July 8, 1980, at the request of the public official for a compulsory auction on the above real estate on the condition that the registration of establishment of mortgage was revoked on the ground that the above provisional registration was not effected on the 19th of the above provisional registration, and the registration of establishment of mortgage was not effected on the 1st of the above provisional registration on the 1st of the above 4th of the above 4th of the 196th of the 1st of the 1st of the 1st of the 5th of the 1st of the 1st of the 1st of the above 1st of the 5th of the 1st of the auction.

On the other hand, in case where a compulsory auction is implemented by a compulsory auction after the provisional registration for the preservation of a right to claim ownership transfer registration, even in the case where the compulsory auction is conducted by a compulsory auction after the provisional registration, such provisional registration shall not be effective at the time of auction by compulsory auction, and in the case where a mortgage establishment registration which is extinguished by the auction exists, such provisional registration shall not be effective against the above mortgage, and since a mortgage is extinguished by a compulsory auction (Article 608(2) of the Civil Procedure Act and Article 3(2) of the Auction Act), the right registered in provisional registration shall also be extinguished after the mortgage is extinguished (Article 608(2) of the Civil Procedure Act and Article 3(2) of the Auction Act). Thus, in such case, the provisional registration shall be interpreted to be subject to a commission of cancellation as the entry of a share of the above real estate which the successful bidder under Article 61(1)2 of the Civil Procedure Act did not take precedence over the above provisional registration which the court of first instance admitted by the court below, and it cannot be known that the above provisional auction registration cannot be established by the above provisional auction after the above provisional auction registration.

Therefore, this reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Tae-tae (Presiding Justice)