Open Decision Ledger · Civil procedure & enforcement
Who must prove the requirements for asserting an assigned mortgage claim
Supreme Court, Jan. 14, 2022, 2019Ma71 (ruling)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 경매개시결정에대한이의
Official text on the National Law Information Center
Question
May an assignee that obtained the secured claim together with the mortgage and registered the transfer of the mortgage apply to enforce it without the requirements for asserting the assignment against the debtor, and who must prove those requirements in the opposition or appeal against an auction-start order?
Holding
Yes. An assignee that obtained the mortgage together with the secured claim and registered the transfer of the mortgage may apply for auction enforcement without proving the requirements for asserting the assignment against the debtor, provided the other requirements for enforcement are met. No proof of those requirements is required when the auction-start order is made, but in an opposition or appeal against that order the applying creditor must prove that it met all of them. Res judicata from the earlier cancellation action does not bar this challenge, because the validity of the mortgage transfer was only a premise stated in the reasons, not the object of the claim decided in the order.
Points at issue, verbatim
저당권과 함께 피담보채권을 양수하여 저당권이전의 부기등기를 마친 자가 채권양도의 대항력을 갖추지 않은 상태에서 저당권실행을 위한 경매를 신청할 수 있는지 여부(적극) / 이 경우 경매개시결정을 할 때 채권양도의 대항요건을 갖추었다는 점을 증명하여야 하는지 여부(소극) 및 경매개시결정에 대한 이의나 항고절차에서는 신청채권자가 위 사유를 증명하여야 하는지 여부(적극)
Unofficial English translation
Whether a person who has, together with a mortgage, acquired the secured claim and completed the marginal registration of the transfer of the mortgage may apply for an auction for enforcement of the mortgage without having satisfied the opposability requirement (assertability against third parties) of the assignment of claim (affirmative) / Whether, in such case, when rendering the auction commencement decision, such person must prove the fact that the opposability requirement of the assignment of claim has been satisfied (negative) and whether, in an objection or appeal procedure against the auction commencement decision, the applicant creditor must prove such grounds (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심결정을 파기하고, 사건을 인천지방법원에 환송한다.
Unofficial English translation
The order of the court below is reversed, and the case is remanded to the Incheon District Court.
Form of the test
Elements stated Stated in the decision
집행법원은 담보권의 존재에 관하여 위 서류의 한도에서 심사하고, 그 밖의 실체법상의 요건은 신청서에 기재하도록 하는 데 그치며, 담보권실행을 위한 경매절차의 개시요건으로서 이를 증명하도록 요구하고 있지 않다.
Unofficial English translation
The enforcement court examines the existence of the security interest within the limits of the above documents, and goes no further than requiring that other requirements under substantive law be stated in the application, and does not require proof thereof as a requirement for commencement of an auction procedure for enforcement of a security interest.
Factors
- 확정판결의 기판력이 미치는 객관적 범위
- 저당권의 피담보채권을 양도하는 방법
- 저당권과 함께 피담보채권을 양수하여 저당권이전의 부기등기를 마친 자가 채권양도의 대항력을 갖추지 않은 상태에서 저당권실행을 위한 경매를 신청할 수 있는지 여부(적극)
- 이 경우 경매개시결정을 할 때 채권양도의 대항요건을 갖추었다는 점을 증명하여야 하는지 여부(소극)
- 경매개시결정에 대한 이의나 항고절차에서는 신청채권자가 위 사유를 증명하여야 하는지 여부(적극)
Unofficial English translation
• The objective scope of res judicata of a final and conclusive judgment
• The method of assigning the secured claim of a mortgage
• Whether a person who has, together with a mortgage, acquired the secured claim and completed the marginal registration of the transfer of the mortgage may apply for an auction for enforcement of the mortgage without having satisfied the opposability requirement (assertability against third parties) of the assignment of claim (affirmative)
• Whether, in such case, when rendering the auction commencement decision, such person must prove the fact that the opposability requirement of the assignment of claim has been satisfied (negative)
• Whether, in an objection or appeal procedure against the auction commencement decision, the applicant creditor must prove such grounds (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2000. 10. 25. 자 2000마5110 결정(공2000하, 2387)
Unofficial English translation
Supreme Court Decision 2000Ma5110 decided October 25, 2000 (Gong 2000 Ha, 2387)
Decisions referred to
[1] 대법원 2002. 9. 24. 선고 2002다11847 판결(공2002하, 2519), 대법원 2002. 12. 27. 선고 2000다47361 판결(공2003상, 495), 대법원 2018. 5. 30. 선고 2017다46236 판결 / [2] 대법원 2005. 6. 10. 선고 2002다15412, 15429 판결(공2005하, 1130) / [3] 대법원 2000. 10. 25. 자 2000마5110 결정(공2000하, 2387), 대법원 2014. 12. 2. 자 2014마1412 결정
Burden of proof
The party asserting Stated in the decision
피신청인은 채무자인 신청인이 이해관계인으로서 제기한 이 사건 이의절차에서 위와 같은 채권양도의 대항요건을 모두 갖추었음을 증명하여야 한다.
Unofficial English translation
The respondent, in this objection procedure filed by the applicant, who is the debtor, as an interested party, must prove that all of the above opposability requirements for the assignment of claim have been satisfied.
Open question and revisit condition
If the applying creditor cannot prove that it met the requirements for asserting the assignment in the opposition proceedings, what happens to a third party that purchased the property at the auction already held?
A later decision on remand examining whether the assignee met all the requirements under Article 450(1) and (2) of the Civil Act would show how the proof requirement works in practice. Any amendment to Article 264 of the Civil Execution Act, Article 192 of the Civil Execution Rule, or Article 450 of the Civil Act also calls for a fresh reading.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “If the applying creditor cannot prove that it met the requirements for asserting the assignment in the opposition proceedings, what happens to a third party that purchased the property at the auction already held?” vs Independent “Can the petitioning creditor prove on remand that the assignment was enforceable against both the debtor and the attaching creditor?”
The primary asks about the fate of a third party who bought at an auction already held if the requirements are not proved. The independent asks whether the applicant can prove the requirements against both the debtor and the attaching creditor on remand.
저당권과 함께 피담보채권을 양수하여 저당권이전의 부기등기를 마친 자가 채권양도의 대항력을 갖추지 않은 상태에서 저당권실행을 위한 경매를 신청할 수 있는지 여부(적극) / 이 경우 경매개시결정을 할 때 채권양도의 대항요건을 갖추었다는 점을 증명하여야 하는지 여부(소극) 및 경매개시결정에 대한 이의나 항고절차에서는 신청채권자가 위 사유를 증명하여야 하는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Incheon District Court, in its ruling of 9 January 2019 (2018Ra441), cancelled the first-instance ruling and dismissed the applicant's opposition. It held that, although the earlier cancellation action and the opposition concerned different objects of claim, the applicant's renewed assertion that the assignee lacked the requirements for asserting the assignment contradicted the earlier action and was barred by its res judicata. It also held that the earlier auction opposition ruling did not finally determine the substantive validity of the secured right.
Supreme Court standard: The Supreme Court held that res judicata attaches only to the conclusion on the existence of the legal relationship pleaded as the object of claim in the order, and not to the existence of a legal relationship stated as its premise in the reasons. Because the earlier final judgment held that the mortgage transfer could not be treated as invalid at its origin regardless of whether the assignee met the requirements for asserting the assignment, there was no contradiction either. The court below therefore erred in failing to examine whether the assignee had met all the requirements under Article 450(1) and (2) of the Civil Act, and the case was reversed and remanded.
Distinguishing conditions
- Where the assignee gave notice of the assignment to the debtor, or obtained the debtor's consent, by instrument bearing a fixed date before the attachment and collection order was served on the debtor.
- Where the assignee has not registered the transfer of the mortgage or does not otherwise meet the requirements for mortgage enforcement.
- Where the earlier final judgment decided as its object of claim the existence of the very right the opponent now attacks in the opposition proceedings.
Record verification notes
Check the date and form of every notice or consent of the assignment against the service date of the attachment and collection order, and against the fixed-date requirement in Article 450(2) of the Civil Act. Then confirm that the earlier final judgment decided only the claim for cancellation of the registration, and that the validity of the transfer was stated only as a premise. Finally, separate the requirements for the auction application under Article 264 of the Civil Execution Act and Article 192 of the Civil Execution Rule from the requirements for asserting the assignment, since the decision treats them differently.
From the official text
Points at issue
[1] 확정판결의 기판력이 미치는 객관적 범위 [2] 저당권의 피담보채권을 양도하는 방법 [3] 저당권과 함께 피담보채권을 양수하여 저당권이전의 부기등기를 마친 자가 채권양도의 대항력을 갖추지 않은 상태에서 저당권실행을 위한 경매를 신청할 수 있는지 여부(적극) / 이 경우 경매개시결정을 할 때 채권양도의 대항요건을 갖추었다는 점을 증명하여야 하는지 여부(소극) 및 경매개시결정에 대한 이의나 항고절차에서는 신청채권자가 위 사유를 증명하여야 하는지 여부(적극)
Unofficial English translation
[1] The objective scope of res judicata of a final and conclusive judgment [2] The method of assigning the secured claim of a mortgage [3] Whether a person who has, together with a mortgage, acquired the secured claim and completed the marginal registration of the transfer of the mortgage may apply for an auction for enforcement of the mortgage without having satisfied the opposability requirement (assertability against third parties) of the assignment of claim (affirmative) / Whether, in such case, when rendering the auction commencement decision, such person must prove the fact that the opposability requirement of the assignment of claim has been satisfied (negative) and whether, in an objection or appeal procedure against the auction commencement decision, the applicant creditor must prove such grounds (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심결정을 파기하고, 사건을 인천지방법원에 환송한다.
Unofficial English translation
The order of the court below is reversed, and the case is remanded to the Incheon District Court.
Provisions referred to
[1] 민사소송법 제216조 제1항 [2] 민법 제186조, 제450조 제1항 [3] 민사집행법 제264조, 민사집행규칙 제192조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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