[손해배상(기)][공2009상,1]
[1] Whether a lessee who meets the requirements for counterclaim under the Housing Lease Protection Act becomes an interested party in the auction procedure even if he/she fails to report his/her right (negative), and whether a lessee who is not an interested party can contest the illegality of the auction procedure on the ground that he/she was not notified of the fact
[2] Whether it constitutes a tort against a lessee who suffered loss due to an official fault by an execution officer who failed to verify the lease relationship properly in the course of a survey on the status of real estate, and as a result, failed to take necessary measures to exercise preferential right to payment due to the failure to obtain notification of the progress
[1] In the auction procedure, the current status of the real estate subject to sale is accurately identified and announced to the general public so that the applicant for purchase can easily obtain necessary information by disclosing the current status and relationship of the real estate so that the applicant for purchase may suffer loss. While interested parties in the auction procedure are notified of the progress of the auction procedure such as the date of sale in order to exercise the right to state opinion, even if a lessee who meets the requirements for counterclaim under the Housing Lease Protection Act is a lessee who fails to prove his/her right before the decision of permission for sale is made, regardless of whether he/she is investigated and reported as a lessee of the results of the investigation of the execution officer's current status, and the notification of the fact of progress of the auction procedure under the regulations of the Supreme Court is merely providing the contents of the auction procedure and the distribution system for the convenience of the parties, it cannot be asserted that the auction procedure is unlawful because the lessee who is not interested parties did not receive the above notification.
[2] In the process of investigating the current status of the enforcement officer in accordance with the order of the auction court, there was an error in the course of not verifying the lease relationship properly, and as a result, even if the lessee was unable to take necessary measures to exercise the right to preferential reimbursement by failing to obtain a notice of the progress of the auction procedure from the auction court, such circumstance alone alone does not lead to a tort in relation to the lessee who was not an interested party in the auction procedure because the enforcement officer’s error in the above duties was not committed, and the procedure for reporting the right under Article 90 of the Civil Execution Act was not taken, and thus, there
[1] Articles 3(1) and 3-2(2) of the Housing Lease Protection Act, Articles 85, 88, and 90 subparag. 4 of the Civil Execution Act, Article 46 of the Civil Execution Rule / [2] Article 750 of the Civil Act, Articles 3(1) and 3-2(2) of the Housing Lease Protection Act, Articles 85 and 88 of the Civil Execution Act, Article 90 subparag. 4 of the Civil Execution Rule, Article 46 of the Civil Execution Rule
[1] Supreme Court Order 9Ma3792 dated August 26, 1999 (Gong1999Ha, 2158) Supreme Court Order 99Ma763 dated January 31, 200 (Gong2000Sang, 582) Supreme Court Order 2004Ma94 dated November 9, 2004 (Gong2005Sang, 65)
Plaintiff
Korea
Daegu District Court Decision 2008Na2041 Decided May 28, 2008
The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.
We examine the grounds of appeal.
In full view of the selected evidence, the court below found that the plaintiff was liable for damages to the non-party 1's apartment on September 12, 200 and the non-party 2's non-party 5's transfer of the above apartment on May 26, 2005 to the non-party 1's non-party 2's non-party 5's non-party 2's non-party 2's non-party 2's transfer of the above apartment to the non-party 4's non-party 5's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 5's transfer of the above apartment on the above 4-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's transfer order.
However, in the auction procedure, the current status of the real estate subject to sale is accurately grasping the current status of the real estate subject to sale and publicly announcing the current status and relationship of the real estate so that the applicant for purchase can easily obtain necessary information so that the applicant for purchase may obtain necessary information, and the interested parties in the sale procedure shall be notified of the progress of the auction procedure, such as the sale date, to exercise the right to state opinion. On the other hand, even if a lessee who meets the requisite for setting up against the Housing Lease Protection Act is a lessee under the Housing Lease Protection Act, unless he/she proves and reports his/her right to the auction court prior to the decision of permission for sale, he/she shall not become an interested party regardless of whether he/she is investigated and reported as the result of the investigation by the execution officer's current status and the notification to the housing lessee of the progress of the auction procedure under the regulations of the Supreme Court is merely providing the contents of the auction procedure and distribution system for the convenience of the parties, and thus, it cannot be argued that there is an error in the auction procedure (see Supreme Court Order 200Ma49, Aug. 26, 19999).
According to the above interpretation of the above precedents, although there was an error of negligence in the course of performing the duty in the process of investigating the current status of the enforcement officer in accordance with the order of the auction court, and therefore, even if the plaintiff was unable to receive notification of the progress of the auction procedure from the auction court and thereby incurred losses, such circumstance alone cannot be said to have a proximate causal relation between the plaintiff and the non-interested party and the damages caused by failure to take necessary measures to exercise the right to preferential payment, due to the failure to report the right under Article 90 of the Civil Execution Act.
Nevertheless, the judgment of the court below which concluded that there exists a proximate causal relation between such negligence and the Plaintiff’s damage solely based on the circumstances of negligence in the course of performing the duties, and that the Defendant’s tort liability is established against the Supreme Court’s precedents, and there is a ground under Article 3 subparag. 2 of the Trial of Small Claims Act that affected the conclusion of the judgment
The ground of appeal assigning this error is with merit.
Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Cha Han-sung (Presiding Justice)