[강제집행정지][공2012하,1539]
[1] In order to apply for the suspension of a procedure in accordance with Article 46 of the Civil Execution Act, which is applied mutatis mutandis by Article 275 of the Civil Execution Act, with respect to an auction procedure to exercise a real estate security right, whether a lawsuit claiming the validity of a security right has to be filed first (affirmative)
[2] The case reversing the order of the court below on the ground that Gap's provisional disposition suspending Eul's auction procedure constitutes a violation of the Constitution, where Byung filed a lawsuit seeking confirmation of existence of an obligation against Eul, and Eul filed an application for suspension of auction procedure against Eul, and the court below decided to suspend the auction procedure with Eul as the respondent Eul, but later revised Byung
[1] Provisional disposition of the suspension of compulsory execution under Articles 44 and 46(2) of the Civil Execution Act is merely an incidental procedure to a lawsuit of demurrer against a claim, and such provisional disposition is premised on the filing of a lawsuit of demurrer against a claim. Meanwhile, in order to suspend an auction procedure for exercising a security right to real estate, a lawsuit that contests the validity of a security right may be filed and the proceeding may be suspended by receiving a decision of the suspension of compulsory execution corresponding to Article 46 of the Civil Execution Act (Article 275 of the Civil Execution Act). Such a request for the suspension of compulsory execution is premised on the assumption that the lawsuit, such as a lawsuit for the cancellation of a claim for the suspension of compulsory execution or a lawsuit for the
[2] The case reversing the order of the court below on the ground that Byung's provisional disposition suspending Eul's auction procedure was an infringement of the right to a trial under legitimate procedure and constitutes a violation of the Constitution that affected the trial, in case where Byung filed a lawsuit for the confirmation of existence of an obligation against Eul, and Eul filed an application for the suspension of auction procedure against Eul, and the court below made a decision to suspend the auction procedure but later corrected Eul Eul
[1] Articles 44, 46, and 275 of the Civil Execution Act / [2] Article 27(1) of the Constitution of the Republic of Korea; Articles 44, 46, and 275 of the Civil Execution Act
[1] Supreme Court Order 81Ma292 dated August 21, 1981 (Gong1981, 14292)
Special Appellants
Seoul Central District Court Order 2012Kao631 dated February 17, 2012
The order of the court below is reversed, and the case is remanded to the Seoul Central District Court.
The grounds of special appeal are examined.
1. A. Provisional disposition of the suspension of compulsory execution under Articles 44 and 46(2) of the Civil Execution Act is merely a procedure incidental to a lawsuit of demurrer against a claim (see Supreme Court Order 81Ma292, Aug. 21, 1981). Meanwhile, in order to suspend an auction procedure for exercising a security right to real estate, the provisional disposition is premised on the fact that an action of demurrer against a claim is filed (see Supreme Court Order 81Ma292, Aug. 21, 1981). Meanwhile, in order to suspend an auction procedure for exercising a security right to real estate, the procedure may be suspended by filing a lawsuit disputing the security right and by receiving a decision of the suspension of compulsory execution corresponding to Article 46 of the Civil Execution Act (see Article 275 of the Civil Execution Act). Such application for the suspension of compulsory execution is premised
B. According to the records, ① the registration of establishment of a collateral security right in the instant building, owned by the applicant, was completed on November 11, 201, the maximum debt amount of 350 million won, the debtor, the mortgagee, and the non-party to the right to collateral security, and on December 12, 201, the registration of establishment of a collateral security right in the name of a special appellant was completed on the grounds of transfer of contract on December 12, 201, ② the special appellant filed an application for voluntary auction of the instant building with the court of Grade 350,000,000 won with the claim amount of KRW 20,000,000,000,000,000 won, ③ the applicant filed an application for a decision of commencement of auction on December 22, 2011, with the court of Seoul Central District Court of Grade 201,5,000,000,000 won, and the Nonparty 21, 2012,02,01.
C. Examining the above facts in light of the legal principles as seen earlier, the court below held that the applicant filed a lawsuit seeking confirmation of the existence of an obligation against the Nonparty, and that the special appellant did not file a lawsuit claiming the effect of the security right against the non-party, but suspended the auction procedure of the special appellant. This constitutes an infringement of the right of the special appellant to a trial in accordance with legitimate procedures, and thus constitutes a violation of the Constitution that affected the conclusion of the judgment.
2. Furthermore, the applicant filed a claim with the purport that the special appellant does not have a debt of KRW 350 million, which is indicated as the amount of the claim at the time of filing an application for a voluntary auction, and that the secured debt is merely KRW 91 million. Since the execution of a mortgage that remains as to a part of the secured debt can proceed with an auction procedure on the whole of the mortgaged property, the order of the court below that allowed the auction procedure by applying mutatis mutandis Article 46(2) of the Civil Execution Act is erroneous in this regard.
3. Therefore, the order of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee In-bok (Presiding Justice)