Plaintiff (Attorney Lee Jae-sung, Counsel for the plaintiff-appellant)

Defendant (Attorney Song-sik, Counsel for the defendant-appellant)

December 8, 2004

Chuncheon District Court Decision 2003Kadan8861 Decided April 7, 2004

1. Revocation of a judgment of the first instance;

2. The defendant will implement the registration procedure for cancellation of each of the registration of creation of superficies, which was completed on November 16, 1998 by the original district court of Chuncheon with respect to each real estate listed in the separate sheet, and completed on November 20, 1998 by No. 5097, Nov. 20, 1998, and completed on November 20, 1998 by the same court.

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or each fact may be acknowledged by taking into account the following facts: Gap evidence 1-6, Gap evidence 1-2, Eul evidence 3-1-6, Gap evidence 4, Gap evidence 5-1-2, Gap evidence 6-1-3, Gap evidence 7-2, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 6-2, Eul evidence 6-1-11, non-party 1, non-party 2, non-party 2's testimony, and the whole purport of each fact inquiry as to the public official of the Seoul East District Court deposit in the Seoul East District Court and the original court deposit in the Chuncheon District Court, and some testimony of non-party 1 and non-party 2 do not interfere with them, and there is no counter-proof otherwise.

A. On November 16, 1998, Nonparty 2 completed on March 5, 199 with interest of KRW 150,00,000 from the Defendant on November 16, 1998, and on November 16, 1998, with a view to securing the above loan obligation by setting a three-year maturity as 3.5% per month, and on November 16, 1998, with a view to securing the Defendant’s obligation for the above loan, Nonparty 2 completed the registration of establishment of the superficies (hereinafter “instant establishment of the superficies”) with respect to each of the instant real property owned by Nonparty 2, 3,570m2 and 291m2 (hereinafter “each of the instant real property before subdivision”), with a view to maintaining the duration of each of the instant divided superficies (hereinafter “mortgage-mortgage-mortgage-mortgage-mortgage-registration”) with a view to 180,000,000,000 for each of the instant real property (hereinafter “the instant real property”). The purpose of each of this case was to maintain the Defendant’s ownership of each of the superficies-mortgage-mortgage-registration 198.

B. Each of the instant real estates was divided on December 15, 200, and the 3,570 square meters prior to the partition became real estate on the 1. to 4. indicated in the attached Table 1 of the Dong-dong, Dong-dong, Dong-dong, Dong-dong, and Dong-dong, Dong-dong, Dong-dong, and 291 square meters prior to the partition were real estate on the 5. to 6. and 6. As a result, the registration of the establishment of the instant neighboring real estate and the registration of the establishment of superficies were additionally recorded or transcribed in the register on each of the instant real estate.

C. As Nonparty 2 did not repay the above loan debt, the Defendant filed an application for voluntary auction of each of the instant real estate with the Chuncheon District Court's original branch on the basis of the instant collateral security, and the said court participated in the auction procedure conducted on December 2, 2002 by rendering a decision to commence voluntary auction (200 other, 10730) and was decided to permit the sale by the above court on May 19, 2003 as the buyer.

D. Nonparty 2 continued to file an immediate appeal, appeal, and reappeal against the above decision of permission for sale. However, on May 23, 2003, the immediate appeal is dismissed, and on September 15, 2003, the appeal was dismissed, and on November 29, 2003, the above decision of permission for sale became final and conclusive.

E. Meanwhile, on October 17, 2002, the Plaintiff lent 60,000,000 won to Nonparty 2 to secure the above loan claims. On October 17, 2002, the Plaintiff had completed the registration of establishment of a collateral for each of the instant real property with the 70,0090 Won for the original district court’s deposit as 50,000 won. During the above auction procedure, the lower-ranking security right holder of each of the instant real property had been requesting the Defendant to cancel the registration of establishment of a collateral for the 150,000 won for the borrowed principal of Nonparty 2 and 30,000 won for the above 1,000 won for the loan and 1,62,000 won for the auction and 30,000 won for the above 20,000 won for the loan and 30,000 won for the loan of this case as 10,000 won for the above loan of this case. However, the Defendant rejected the deposit as the principal of Seoul District Court’s 201,36,630,5,601,60.

F. On November 29, 2003, the execution court, which had been conducting the above auction procedure, decided on March 25, 2004 after the decision to permit the sale of each of the instant real estate, and decided on the payment deadline and the date of distribution on the date of March 25, 2004. On March 11, 2004, when the plaintiff submitted the original copy of the decision to suspend the above compulsory execution, the court changed the above date of distribution to a subsequent designation. On April 7, 2004, the court of first instance sentenced the decision of the first instance on April 7, 2004. After the court of first instance designated the payment deadline and the date of distribution as May 27, 2004 after resumption of the above auction procedure, the plaintiff submitted the original copy of the decision to suspend the above auction procedure until the appellate court rendered a judgment, and changed to a subsequent designation of the date of distribution.

G. At the time of December 2, 2002, the Defendant applied for the above voluntary auction, at the time of Nonparty 2’s application, was unable to receive KRW 150,00,000 from Nonparty 2 the total amount of KRW 98,40,00,000 for the agreed interest and delay damages. As of January 2, 2004, the above loan interest on Nonparty 2’s Defendant exceeded KRW 168,40,000 for the principal and interest of KRW 150,000 for the agreed interest and delay damages.

H. Meanwhile, on February 24, 2004, the Defendant reserved the objection that the Plaintiff received the above KRW 153,662,000 deposited in the Seoul Eastern District Court as part of the claim amount. On February 25, 2004, the Defendant reserved the objection that the Plaintiff received the above KRW 30,000,000 deposited in the Chuncheon District Court as part of the claim amount.

2. Judgment on the parties' arguments

A. Summary of the parties' assertion

The plaintiff should be deemed to include the junior mortgagee of the mortgaged real estate. Since the third acquisitor of the mortgaged real estate is also entitled to a claim for extinguishment of the senior mortgagee's right until the purchaser pays the maximum debt amount, even after the decision to permit the sale of the mortgaged real estate became final and conclusive, the plaintiff constitutes a third mortgagee. Since the defendant, who is the highest mortgagee, deposits the maximum debt amount of the mortgaged real estate before full payment of the purchase price, and the defendant filed a claim for extinguishment of the mortgaged real estate, the defendant is not obligated to perform the procedure for registration of cancellation of the senior mortgagee's right to the mortgaged real estate. Since the second mortgagee's claim for the sale of the mortgaged real estate was completed to secure the value of the mortgaged real estate in this case, the defendant cannot be deemed to have satisfied the above maximum debt amount as set forth in Article 469 (1) of the Civil Act. Since the third mortgagee's claim for the sale of the mortgaged real estate in this case was merely an interested third party and thus, the defendant cannot be deemed to have satisfied the above maximum debt amount of the mortgaged real estate in this case.

B. Determination

(1) In light of the above argument and the above argument, it is reasonable to view that the secured mortgage holder of the mortgaged real estate is also included in the "third acquisitor" as stipulated in Article 364 of the Civil Act. Thus, the plaintiff can claim the extinguishment of the secured debt of this case against the defendant who is the senior mortgagee of each of the real estate of this case and claim for the extinguishment of the secured debt of this case. Further, in order to claim the extinguishment of the secured debt of this case, the debtor can claim the extinguishment of the secured debt of this case as the owner of the mortgaged real estate of this case, regardless of whether the secured debt of this case is the position of the mortgagee or the secured debt of this case, only if the secured debt of this case is the secured debt of this case, the secured debt of this case can be claimed for the extinguishment of the secured debt of this case. However, since the secured debt of this case cannot be seen as 10 years prior to the expiration of the secured debt of this case, the secured debt of this case can only be defined as 10 years prior to the expiration of the secured debt of this case."

B. According to the reasoning of the judgment below, the court below erred by misapprehending the legal principles as to the commencement order of the auction procedure, and by misapprehending the legal principles as to the commencement order of auction procedure, the court below erred by misapprehending the legal principles as to the commencement order of auction procedure. The court below did not err by misapprehending the legal principles as to the commencement order of auction procedure. The court below erred by misapprehending the legal principles as to the commencement order of auction procedure. The court below did not err by misapprehending the legal principles as to the commencement order of auction procedure, as otherwise alleged in the ground for appeal. The court below did not err by misapprehending the legal principles as to the commencement order of auction procedure, as otherwise alleged in the ground for appeal. The court below did not err by misapprehending the legal principles as to the conclusion of the judgment, as otherwise alleged in the ground for appeal.

Article 143 (2) of the Civil Execution Act provides that "if the purchaser is a creditor, the amount to be distributed may be paid on the date of distribution other than the amount to be reported to the court until the date of sale decision expires," the above "amount to be distributed" means not the amount to be distributed by the purchaser, but the amount to be actually distributed on the date of distribution according to the order of distribution, and the payment has the effect of paying the amount to be received by the purchaser on the date of distribution, and the above difference has the effect of paying the amount to be paid by the purchaser on the date of sale. However, the effect of paying the amount to the purchaser's claim is not limited to 70,000,000,000 won by submitting a report on the difference payment to the court of execution and receiving instructions from the judge of the court of execution to permit it, but the above effect is 70,000 won by paying the difference in actual amount to be paid by the purchaser on the date of sale, each of the above 70,000,000 won of the auction procedure.

C. Sub-decision

Therefore, the defendant is obligated to implement each procedure for the registration of the establishment of a mortgage and the cancellation of superficies registration completed on each real estate of this case to the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted as reasonable, and since the judgment of the court of first instance is unfair in conclusion with different conclusions, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the defendant shall be ordered to implement each procedure for registration of cancellation of the registration of establishment of neighboring superficies of this case and the registration of establishment of superficies of this case, and

[Attachment List of Real Estate]

Judges Hong Jae-chul (Presiding Judge)