Whether a creditor who acquired a lien by taking over the possession of the immovables after the seizure took effect upon registration of the entry in the auction decision on the immovables owned by the debtor, may oppose the successful bidder in the auction procedure on the ground that he was unaware of the fact that the registration of the entry was completed without any negligence (negative)

Where a creditor acquires a claim for the construction price and a lien secured thereon against a debtor by taking over the possession of the above real estate from the debtor and executing construction works thereon after the seizure has taken effect after the entry of the decision to commence auction was registered on the real estate owned by the debtor, such transfer of possession goes against the effect of prohibition on the disposition of seizure under Articles 92(1) and 83(4) of the Civil Execution Act, since it constitutes an act of disposal likely to reduce the exchange value of the subject matter, and thus the transfer of possession goes against the effect of prohibition on the disposition of seizure under Articles 92(1) and 83(4) of the same Act. In such cases, the creditor who occupied the real estate under the above circumstances cannot oppose the successful bidder in the auction procedure on the ground of the above lien. In such a case, it shall not affect the conclusion that the creditor was aware that the entry of the decision to commence auction

Articles 83(4), 91(5), and 92(1) of the Civil Execution Act

[Plaintiff-Appellant] Plaintiff 2005Da22688 delivered on August 19, 2005 (Gong2005Ha, 1503)

Plaintiff (Attorney Cho Chang-soo, Counsel for the plaintiff-appellant)

C.C. (Law Firm Hunting, Attorneys Jeong Jong-chul et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2005Na473 delivered on March 10, 2006

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

The grounds of appeal are examined.

In cases where a creditor acquires a claim for the construction price and a lien secured thereon against a debtor by taking possession of the above real estate from the debtor and executing construction works thereon after the seizure has taken effect after the entry of the decision to commence auction was registered on the real estate owned by the debtor, such transfer of possession goes against the effect of prohibition on the disposition of seizure under Articles 92(1) and 83(4) of the Civil Execution Act, since it constitutes an act that is likely to reduce the exchange value of the object, and thus the transfer of possession goes against the effect of prohibition on the disposition of seizure under Articles 92(1) and 83(4) of the same Act. Thus, the creditor who occupied the real estate under the above circumstances cannot oppose the successful bidder in the auction procedure on the real estate on the ground of the above lien (see Supreme Court Decision 2005Da22688, Aug. 19, 2005). In this case, it cannot be affected by the conclusion that the creditor was not aware that the registration of the decision to commence auction on the real estate, or whether he was negligent.

The court below's decision that the defendant cannot defend the right of retention against the plaintiff's request for extradition regarding the real estate of this case is just in accordance with the above legal principles, and the ground of appeal, which is premised on a different opinion, cannot be accepted.

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

Justices Park Si-hwan (Presiding Justice)