법률상 원인 없이 부동산가압류등기가 말소된 후에 제3취득자의 채권자가 신청한 경매에서 매수인이 매각대금을 다 낸 경우, 가압류 효력의 소멸여부 - 대법원 2017. 1. 25. 선고 2016다28897 판결 -

가압류등기 말소 뒤 경매 매각 시 가압류 효력의 소멸 여부를 분석했다.

Even if a property is seized provisionally, its disposal is not prohibited unconditionally, but invalidated relatively within the range that interferes with the execution of rights by the creditor (individual relative invalidity). If the property was disposed by the owner to a third party after the senior provisional seizure is registered, and a mortgage registration is completed under the name of third party purchaser`s creditor, the creditor of senior provisional seizure can obtain performance with priority within the range of his/her preserved credit amount at an auction requested by the mortgagee.

However, the registration of senior provisional seizure may be canceled without any legitimate cause, and the auction procedure applied by the third party purchaser`s creditor may be carried out before the creditor of senior provisional seizure is aware of such fact. According to a judicial precedent for this kind of case, when a successful bidder (purchaser) has paid the whole price for sale, senior provisional seizure becomes invalid even if the creditor of senior provisional seizure did not receive his/her share. Criticism may be raised against such conclusion that the protection of rights of creditors of senior provisional seizure is neglected.

However, considering that Civil Execution Act remains consistent in the extinction principle in the case of a mortgage, and that it is highly necessary to protect the safety of the transaction as the successful bidder made the bid for the property on the day of auction when the registration of senior provisional seizure did not appear on the register or legal terms of sale, it is appropriate to affirm the view of the precedent.

Nevertheless, the creditor of senior provisional seizure damaged by the cancellation of registration of senior provisional seizure without any legitimate cause may exercise the right to request the return of unfair profits against the third party purchaser`s creditors who received the share in the above auction procedure or raise a claim for damages against the state within a limited range.