In case where a provisional registration under the name of a third party, which was made before the decision of permission for compulsory auction becomes final and conclusive after the decision of permission for auction has been made, and the successful bidder fails to acquire the ownership of the property at the successful bid, whether the creditor is unjust enrichment to receive the dividend from the proceeds of the successful bid.
In a case where the decision to grant a successful bid on the real estate for the purpose of auction by an application for compulsory auction in the name of debt holder becomes final and conclusive, even if the successful bidder becomes unable to acquire the ownership of the real estate at the auction by means of a provisional registration in the name of a third party, which was made prior to the decision to commence the auction, on the basis of the provisional registration in the name of such third party, even if the ownership transfer registration has been made, the decision to grant the successful bid alone does not go to the effect that
Article 741 of the Civil Act
Namyang-gun (Attorney Lee Ho-ho, Counsel for defendant-appellant)
Seoul High Court Decision 85Na3598 delivered on January 31, 1986
The judgment below is reversed, and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
According to the reasoning of the judgment below, the court below determined that the plaintiff's compulsory auction procedure in the judgment of the court below is null and void since the plaintiff paid the successful bid price in full, and the defendant received dividends from the successful bid price as a repayment of tax claim in the judgment against the debtor, and that the order preservation of the right to claim ownership transfer due to the purchase and sale reservation in the name of the non-party had already been registered before the decision of commencement of this case was made, but the non-party became unable to acquire the ownership of the auction property in this case because the non-party completed the principal registration based on the provisional registration, and therefore, the compulsory auction in this case was conducted for the real property owned by the non-party, not owned by the debtor since the procedure was conducted from the commencement of the compulsory auction, and therefore, the dividends that the defendant received from the bid price is unjust for the defendant's loss without any legal ground
However, in case where the decision of permission of auction on the immovables for auction purpose by a compulsory auction based on the name of debt becomes final and conclusive, even though the successful bidder was unable to acquire the ownership of the immovables because a transfer of ownership was registered in the name of a third party on the basis of provisional registration in the name of the third party which was made before the decision of commencement of auction was made, the decision of permission of auction was not null and void only for such reason, and thus, the creditor cannot be viewed as unjust enrichment that he acquired dividends that he received as the repayment of obligation out of the successful bid price without any legal reason. In addition, according to the records, the plaintiff cannot acquire the ownership of the immovables for the same reason as the time of the original adjudication. Thus, it is clear that the plaintiff cannot acquire the ownership of the immovables for auction purpose due to the same reason as the time of the original adjudication, the court below did not review the facts of the plaintiff's assertion and decide the return of the dividends to the defendant who is the dividend creditor on the ground of the debtor's insolvency, but the court below erred in the misapprehension of legal principles as to unjust enrichment or the principle of auction.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Lee Jae-hee (Presiding Justice)
- 민법 제741조
- 민법 제578조