Whether a right to lease on a deposit basis, the period of which expires six months after the date of registration of a request for auction after a provisional attachment is extinguished due to an auction (affirmative)

The provisional seizure is merely for the purpose of preserving the execution and preservation of monetary claims, and it is sufficient to pay dividends corresponding to its status to the successful bidder at the expense of the above real estate, and even if the provisional seizure is completed more than the registration of the request for auction, the provisional seizure is extinguished due to the auction. Thus, if the successful bidder pays the successful bid price due to the auction procedure conducted by the third execution creditor after the establishment of the right to lease on the real estate under provisional seizure, and the provisional seizure is completed after six months from the registration date of the request for auction, if the right to lease on a deposit basis established after the provisional seizure expires after the date of registration of the request for auction under Article 608 (2) of the Civil Procedure Act, the right to lease on a deposit basis is not extinguished within six months from the registration date of the request for auction, or if it is deemed to have been taken over to the successful bidder within six months from the registration date of the request for auction, the auction price of the real estate would be reduced to the extent possible, which would infringe the interests of the prior creditor of the right to lease on a deposit basis.

Articles 589(3), 608(2), and 696 of the Civil Procedure Act; Article 303 of the Civil Act

Current International Co., Ltd. (Attorney Lee Young-young et al., Counsel for the plaintiff-appellant)

Masck only

Seoul High Court Decision 94Na18852 delivered on September 27, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's application for auction on April 25, 1994 that the non-party 1, the co-owner of the building of this case, constructed the building of this case and completed the registration of preservation of ownership in the name of Dong on April 17, 192. On April 17, 192, the provisional attachment registration was completed on April 24, 1992 after the non-party 1's provisional attachment registration was completed on April 24, 1992. After the non-party 4's provisional attachment registration was completed on April 27, 1992, the non-party 110,000,000 won, and the period of the above provisional attachment registration was extinguished on April 27, 1992. The court below rejected the plaintiff's application for auction of this case as well as the plaintiff's claim that the above provisional attachment registration was completed on April 25, 1994.

2. Article 608 (2) of the Civil Procedure Act, which applies mutatis mutandis to an auction procedure to exercise a security right pursuant to Article 728 of the same Act, provides that "right to lease on a deposit basis, the period of which expires within 6 months after the registration of a request for auction, shall expire due to a successful bid." According to the facts established by the court below, the plaintiff's right to lease on a deposit basis does not fall under a right to lease on a deposit basis, the period of which expires within 6 months after the registration

However, provisional seizure is merely for the purpose of preserving the execution of monetary claim, and it is sufficient to pay dividends corresponding to its status, and it is not necessary to have the successful bidder bear the expenses of the above real estate, so even if the provisional seizure is completed earlier than the registration of the request for auction, it shall be extinguished by auction.

Therefore, the provisional seizure is extinguished if the successful bidder pays the successful bid price after the right to lease on a deposit basis has been established for the real estate which was executed by the provisional seizure. In this case, if the right to lease on a deposit basis established after the provisional seizure is considered to have been taken over to the successful bidder without extinguishment of the right to lease on a deposit basis, the auction price of the real estate should be reduced to the same extent, which would result in infringement of the interests of the creditor of the provisional seizure prior to the right to lease on a deposit basis, and thus, the right to lease on a deposit basis which cannot be set up against

In the same purport, the decision of the court below that rejected the plaintiff's above assertion is just, and it cannot be said that there was an error of misapprehending the legal principles as to the effect of provisional attachment, security right and auction procedure, as otherwise alleged in the ground of appeal. The argument is without merit.

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

Justices Kim Jong-soo (Presiding Justice)