[2] Where a co-owner exercises a preferential right to purchase, whether the highest bidder can present a higher bid price (negative)

[2] Article 650 (1) and (2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), which applies mutatis mutandis under Article 663 (2) of the same Act, provides that where a co-owner exercises a preferential right to purchase, the court shall permit the co-owner to make a successful bid, and allowing the highest bidder to present a higher bid price at the bidding date is contrary to the nature of the tender. Since there are no procedures for a new bid date where only the co-owner and the highest bidder can participate and present a higher bid price or bidding price, the highest bidder cannot present a higher bid price if the co-owner exercises a preferential right to purchase.

1. Article 650(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002; hereinafter the same) provides that co-owners may provide a guarantee by the date of auction and declare a preferential bid for the debtor's share at the same price as the highest bid price. In the case of paragraph (1) of the same Article, the court shall permit the successful bid to co-owners regardless of the highest bid price. The above co-owners' preferential bid right is a system that provides co-owners with an opportunity to receive a successful bid or a successful bid at the price after the highest bid price is determined. Thus, even in the case of bidding, the notification of preferential purchase and the provision of a guarantee to co-owners shall be limited until the execution officer declares the completion of the bid, and it shall not be limited to the last day of bid surveillance (Supreme Court Order 2002Ma2344 Decided Jun. 17, 2002).

According to the reasoning of the order of the court below, the court below acknowledged that the Re-Appellant 1 reported the purchase of the real estate No. 2 of this case in the bidding procedure of this case which was conducted by the fixed bid method at the highest price for each of 85 million won as to the real estate No. 2 of this case as indicated in the judgment of the court below. The non-party 1 declared that the auction court ordered the non-party 1's successful bid even though the execution officer terminated the bid and did not provide the bid bond until the name and price of the highest bidder and did not pay the highest bidder's successful bid price, but the non-party 1 was one of the co-owners who held the above 29/168 shares of each of the above real estate at the bidding date of this case and reported the preferential purchase to the highest bid price reported by the execution officer before the termination of the bid and paid 8.5 million won each of the bid bond to the non-party 1 who exercised the preferential purchase right as a co-owner. In light of the above legal principles and records, the court's findings and judgment are justifiable.

2. Article 650 (1) and (2) of the former Civil Procedure Act, which applies mutatis mutandis to a tendering procedure pursuant to Article 663 (2) of the same Act, provides that "if a co-owner exercises a preferential purchase right, the court shall permit the co-owner to make a successful bid." It goes against the essence of the bidding to require the highest price bidder to present a higher bid price on the bidding date in question. Since there are no procedural provisions regarding the new bidding date where only the co-owner and the highest price bidder participate in and present a higher bid price or the highest price, the highest price bidder cannot present a higher bid price (see Supreme Court Order 2004Ma496, 497, Sept. 24, 2004).

In the same purport, the court below held that the decision of the auction court that granted the successful bid to the non-party 1 who is the co-owner is legitimate even if the non-party 1, who is the highest bidder, reported the purchase of at least KRW 95 million above each of the above 85 million and paid the bid deposit, as the non-party 1, who is the co-owner, exercised the preferential bid right, is legitimate, and there is no violation of law by misapprehending the legal principles on the exercise

3. Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)