The case where it is impossible to register the recovery of the registration of the establishment of a neighboring mortgage illegally cancelled;

The case holding that the right to collateral security, which was cancelled without any cause, should not be immediately extinguished solely on the ground that the establishment registration of a neighboring real estate was completed and the registration was cancelled on the basis of forged documents; however, since the mortgage existing in the real estate was naturally extinguished upon a successful bid in the auction procedure, the right to collateral security, which was cancelled without any cause, was held to be extinguished without cause, if the auction procedure was conducted upon the application of the right holder, such as another mortgagee, etc. as to the real estate which was the object of collateral security, and the successful bidder paid out

Article 76 of the Registration of Real Estate Act, Articles 608(2) and 728 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Barun Co., Ltd. (Attorney Yang LLC-LLC, Counsel for the plaintiff-appellant)

Defendant

Cho Ho-Hy Mutual Savings Bank

Busan High Court Decision 95Na11511 delivered on August 14, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff, including the part arising from the supplementary participation.

We examine the grounds of appeal.

Although the mere fact that the establishment registration of a neighboring real estate was completed, and the registration was cancelled without any cause on the basis of forged documents, the right to collateral security is not immediately extinguished. However, since the mortgage existing on the real estate is naturally extinguished upon a successful bid in the auction procedure (see Articles 608(2) and 728 of the Civil Procedure Act), the right to collateral security, which was cancelled without any cause, should be deemed extinguished without cause if the auction procedure was conducted after the registration of establishment of a neighboring real estate was cancelled at the request of the right holder, such as another right holder, and the decision to grant a successful bid becomes final and conclusive and the successful bidder paid the successful bid price in full (see Supreme Court Decision 97Da35771, Nov. 25, 1997).

As duly admitted by the court below, if the registration of the establishment of a neighboring mortgage and the registration of the creation of superficies in the name of the plaintiff as to the real estate 1 of this case were illegally cancelled, and the auction procedure was conducted based on the right to collateral security of the defendant joining the defendant which was established thereafter, and the decision of permission of the auction was finalized and the successful bid price was fully paid, the right to collateral security in the name of the plaintiff which was illegally cancelled was extinguished due to the successful bid, and the superficies in the name of the plaintiff, which is subordinate to the right to collateral security which was extinguished above the right to collateral security which was extinguished, shall not be claimed

The judgment of the court below to the same purport is just, and there is no violation of a misapprehension of legal principles as alleged in the grounds of appeal.

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

Justices Kim Jong-sik (Presiding Justice)