[경락불허가결정][공1994.11.1.(979),2788]
In case where the notice of the date of payment of the successful bid price is illegal but the procedure of re-auction is conducted on the ground of the unpaid payment, whether the adjudication may be rejected ex officio.
If the service of the notice of payment date to the successful bidder is not lawful, the auction procedure is unlawful to proceed with the auction procedure by ordering the successful bidder to re-auction on the ground that the successful bidder did not pay the price on the payment date. Such unlawful act constitutes a ground not to permit the auction under Article 635 and subparagraph 1 of Article 633 of the Civil Procedure Act, which applies mutatis mutandis to the auction procedure to exercise the security right to immovables pursuant to Article 728 of the same Act. However, in the case of Article 635 (2) proviso of the same Act, the proviso of Article 635 (2) of the same Act limits the case where "the auction procedure shall not be permitted ex officio only when the auction real estate is not transferable or when the auction procedure is suspended." Thus, unless it falls under the case as provided in the proviso of the above Article 633 (1) of the same Act, even if the auction procedure is illegal, the adjudication of auction is not permitted ex officio unless
Civil Procedure Act (Articles 635 and 633 subparag. 1), Article 728
Supreme Court Order 70Ma553 Dated October 16, 1970 (No. 18 third citizen192)
Re-appellant
Seoul Central District Court Order 93Ra1283 Dated March 24, 1994
The order of the court below is reversed. The case is remanded to Seoul Civil Procedure District Court Panel Division.
The Re-Appellant's grounds of reappeal are examined.
1. According to the reasoning of the order of the court below, the court below ordered the auction court to re-auction the real estate of this case on March 18, 1993 at the Seoul District Court Branch Decision 92Hu10766, which rendered a ruling of permission of auction, and the court of appeal filed by non-party 2 and non-party 3 as to the above ruling of permission of auction was all dismissed, and the above ruling of permission of auction became final and conclusive on July 28, 1993. However, as the above non-party 1 did not pay the auction price on September 6, 1993 at the 10th auction date, the court of auction did not lawfully notify the non-party 1 as to the above ruling of permission of auction on the ground that the non-party 1 did not pay the auction price on the 19th auction date on September 10, 1993, the court of first instance on November 15, 1993 and notified the non-party 1 as to the above ruling of permission of auction.
2. If the service of the notice of the payment date to the above non-party 1 as determined by the court below is not legitimate, it is unlawful that the court ordering the auction court to re-auction the auction on the ground that the non-party 1 did not pay the price on the payment date. Such illegality constitutes a ground for non-permission of the auction under Article 635 and subparagraph 1 of Article 633 of the Civil Procedure Act, which applies mutatis mutandis to the auction procedure to exercise the security right to real estate pursuant to Article 728 of the same Act. However, in the case of Article 635 (2) proviso of the same Act, the auction is limited to the case where the transfer of the real estate at auction is impossible or the auction procedure is suspended ex officio, and thus, it is not possible to grant ex officio permission of the auction without the interested party's objection.
Nevertheless, the court below affirmed the decision of rejection of the above successful bid and dismissed the appeal by the re-appellant. Therefore, the order of the court below is in violation of the law that affected the conclusion of the judgment, and there is a reason to point this out.
3. Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Sung-sung (Presiding Justice)