[1] Whether an auction under a lien under Article 322(1) of the Civil Act is implemented under the conditions of statutory sale to extinguish the burden on the real estate subject to the lien (affirmative), and whether the lien holder’s distribution order (i.e., the same order as the general creditor), and whether the executing court may determine that the purchaser of the real estate subject to the lien may take over the burden on the real estate subject to the sale through a change in the

[2] In a case where a compulsory auction for an object or an auction procedure for exercising a security right is conducted while the auction procedure under a lien has been suspended, whether the lien is extinguished (negative)

[3] The case affirming the judgment below holding that in case where Gap, a lien holder, applied for the auction procedure under the lien against a store, etc., when the auction procedure under the lien was commenced on the part of the mortgagee, the auction procedure was suspended on the part of the store, and Eul acquired the ownership by winning a successful bid in the auction procedure to exercise the security right, and thereafter Eul, etc. acquired the ownership by winning a successful bid at the auction procedure again commenced on the part of the store, since the auction procedure under the lien was suspended upon the commencement of the auction procedure under the right to collateral security, and Eul received the successful bid at the auction procedure, and Eul received the share of the right of retention at the auction procedure, as the auction procedure under the right to collateral security had the right to attract the store until the portion of

[1] Articles 91(2) and (3), 111, 268, and 274(1) of the Civil Execution Act; Article 322(1) of the Civil Act / [2] Articles 91(5), 268, and 274(2) of the Civil Execution Act; Article 322(1) of the Civil Act / [3] Articles 91(5), 268, and 274(2) of the Civil Execution Act; Article 322(1) of the Civil Act

[1] Supreme Court Order 2010Ma1059 Decided June 15, 201 (Gong2011Ha, 1437) Supreme Court Order 2009Ma2063 Decided June 17, 2011

Plaintiff 1 and one other

Joint Civil Construction Corporation

Seoul Southern District Court Decision 2010Na4849 decided April 7, 2011

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. On the first and second grounds for appeal

Even an auction under a lien held pursuant to Article 322(1) of the Civil Act, as well as an auction for exercising a compulsory auction or a security right, shall be implemented under the conditions of statutory sale to extinguish the burden on the target real estate as well as an auction for exercising a security right, and a lien holder as well as a preferential creditor shall be allowed to demand a distribution in the same order as a general creditor. However, unlike the above conditions of statutory sale by examining the interests of the real estate, a court of execution may determine that a purchaser may take over the real estate without extinguishing the burden on the target real estate through a modified sale agreement, unlike the above conditions of statutory sale by examining the interests of the real estate (see, e.g., Supreme Court Order 2010Ma1059, Jun. 15, 2011; Supreme Court Order 2009Ma2063, Jun. 17, 2011).

However, in a compulsory auction or auction procedure for exercising a security right to immovables, the purchaser of the lien is liable to repay to the lien holder any claim secured by the lien (Articles 91(5) and 268 of the Civil Execution Act). Since the auction procedure under the lien is suspended when the compulsory auction or auction procedure for exercising a security right to the subject matter has been commenced for the subject matter (Article 274(2) of the Civil Execution Act), if the compulsory auction or auction procedure for exercising a security right to the subject matter has been conducted under the suspension of the auction procedure under the lien and the auction procedure for exercising a security right has been completed, it is reasonable to deem that the lien does not expire, unlike the case where the auction procedure under the lien is in progress with the principle of extinction.

Based on the adopted evidence, the court below rejected the non-party's claim for the auction procedure of this case based on the following facts: (a) on the building of this case including the store of this case as the lien holder's application on November 16, 2004, the auction procedure under the lien was commenced at Seoul Southern District Court Decision 2004Mo4159, the Seoul Southern District Court Decision 2004Ma4159; (b) on the application of the bank of Korea Co., Ltd. during the above auction procedure, the auction procedure of this case was commenced at the above court at 2004Mo49041; (c) the non-party was suspended from auction procedure at 2004Mo49041; (d) on the other hand, the non-party was awarded the bid of this case at the auction procedure of this case and acquired the ownership of this case after being awarded the successful bid in the auction procedure of this case until July 16, 2009.

In light of the above legal principles and records, the judgment of the court below is just and acceptable, and there are no errors in the misapprehension of legal principles or omission of judgment as to the suspension of auction procedure under the lien and the extinguishment of lien, as otherwise alleged in the ground of appeal. The grounds of appeal on this point are without merit.

2. On the third ground for appeal

As to the plaintiffs' assertion that the defendant's right of retention against the store of this case was extinguished according to the plaintiffs' declaration of intent to extinguish the plaintiffs' right of retention because the defendant used the store of this case outside the preservation act of custody, it is difficult to conclude that the defendant has used the store of this case beyond the necessary scope for the preservation of the store of this case only with the fact that the defendant registered the store of this case as the principal office and uses it as the office in light of the circumstances stated in its reasoning. In light of the records, there is no error in the misapprehension of legal principles as to the claim to extinguish the right of retention as

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)