[2] The case holding that, in a case where the court of execution decided the minimum sale price, including the appraised value of an unregistered building on the land in an unregistered state which was not constructed on the ground of the real estate subject to sale, but the judicial assistant of the court of execution decided the permission for sale only for the real estate except the above building, the state compensation liability cannot be

[2] The case holding that in case where the judicial assistant officer of the court of execution decided the minimum sale price, including the appraisal value of the building in an unregistered state which was not constructed on the ground of the real estate subject to sale, but the judicial assistant officer of the court of execution decided the sale permission only for the real estate except the above building, the judicial assistant officer of the court of execution has sufficient corrective measures under the Civil Execution Act regarding the business of determining the minimum sale price in the auction procedure for the real estate auction and determining the sale permission, and there are no other circumstances to deem that the judicial assistant of the above auction procedure clearly exercised the above act delegated by the court of execution in violation of the purpose of the authority vested in him, such as determining the minimum sale price or deciding the sale permission, and since the above act does not constitute an unlawful act under Article 2 (1) of the State Compensation Act, it does not constitute an unlawful act under the State Compensation Act, and although the statement of sale does not clearly state the purport that the above building is excluded from the object of sale, it can be confirmed finally by other means such as inspection of the current status report, and it cannot be evaluated as the state or duty to provide any information.

2. The costs of appeal shall be borne by the Plaintiff.

A. The Suwon District Court (hereinafter referred to as the “Execution Court”) established a separate building on the ground of the attached list Nos. 1 and 3 real estate listed in the attached list on June 12, 2008 in the above court of 2008 Doz. 24233, 42774, and 47540 (Duals) concerning each of the real estate listed in the attached list (hereinafter referred to as the “each of the instant real estate”), with an appraiser’s objection in charge of appraisal of the value of each of the instant real estate in the auction procedure of real estate (hereinafter referred to as the “instant auction procedure”), with an independent building listed in the attached list Nos. 7 in the attached list No. 1 and 3 real estate. However, the said appraiser’s objection was constructed in the form of a building listed in the attached list No. 320 m20 m20 m230 m24 m200 m284 m204 m29300 m284 m20.

B. The report on the investigation of the current status of real estate on each of the instant real estate prepared by the execution officer of Suwon District Court on September 24, 2008 (However, this report was about the real estate Nos. 8 and 9 stated in the attached list) stated as follows: “The owner cannot be confirmed because there is no building ledger and building permit report, etc. for out-of- city buildings, and there is no building register and building permit report. It is also possible to confirm the owner. In addition, it is accompanied by a notice of the current status of real estate on each of the instant real estate in question and a photograph of the building outside the presented building.”

C. On November 27, 2008, in the remarks column of the specification of the sale articles concerning each of the instant real estate prepared in the instant auction procedure, the phrase “one comprehensive sale, three hundred and twenty square meters in bulk, and twenty-four square meters in store rooms in light of the light steel structure, sand site, panel site, and one-four square meters in bulk, and twenty-four square meters in total, in which a lien report is filed for the entire land and buildings on November 27, 2008, from the land and buildings located on November 27, 2008.” In the indication column of the real estate price, only each of the instant real estate except for other buildings not presented, was written in the indication column of the minimum sale price of the real estate, and the real estate sale announcement on the date of sale on May 14, 2009 also was written in the same form as the sale articles specification.

D. On May 14, 2009, the Plaintiff received the bid price of each of the instant real estate in KRW 1,456,00,000 from the date of sale of the instant auction procedure, the minimum sale price of which was reduced to KRW 1,426,597,00. The judicial assistant of the executing court did not include buildings other than the presentation on May 21, 2009, and issued a decision to permit the sale of each of the instant real estate to the Plaintiff (hereinafter “decision to permit the sale of this case”). On June 24, 2009, the Plaintiff paid KRW 1,456,000 to the auction court on June 24, 2009 without disputing the decision to permit the sale.

E. Meanwhile, the Plaintiff filed an application for rectification with the Suwon District Court on July 16, 2009 and October 13, 2009 on the grounds that the subject matter of the instant permit for sale was not included in buildings other than those presented, but not accepted.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, 2, 3, 4-1, 2, Eul evidence 1, 2, 4-1, 5-1, and the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

Although the execution court makes an additional appraisal of buildings other than those presented by the court of execution and calculates the minimum sale price by adding up the appraisal price, due to negligence not clearly indicated in preparing the specification of goods to be excluded from the objects of sale in the auction procedure of this case, the plaintiff purchased each of the real estate of this case after he believed that the buildings other than the presented are included in the objects of sale and paid the sale price, including the value of the buildings other than the presented ones, and he paid the sale price which includes the value of the buildings other than the presented ones, the defendant is liable to compensate the plaintiff for damages suffered by the plaintiff for KRW 43,38,240 calculated by calculating the appraisal price of the buildings other than the presented ones in accordance

B. Determination

(1) Whether the additional appraisal of the building outside the limit of the presentation is unlawful

The fact that the building other than the presentation was not registered and the owner was unknown is the same as seen above. Therefore, even if the execution court ordered the additional appraisal of the building other than the presentation, it cannot be viewed as unlawful in the situation where the effect of the attachment by the auction procedure of this case might affect the building other than the presentation.

(2) Whether the determination of the minimum sale price and the permission for the sale of this case are unlawful

In light of the special nature of trial affairs conducted by a judge and the fact that there is an institutional device that can be corrected separately by appeal procedures with respect to the error in the trial process, even if a judge's error in failing to comply with the provisions of law does not lead to the State's liability for damages by the illegal act as referred to in Article 2 (1) of the State Compensation Act. It is reasonable to interpret that, for the State's liability to be recognized, there should be special circumstances to recognize that the relevant judge clearly violated the purport of the authority vested in him by conducting a trial with unlawful or unjust purposes (see Supreme Court Decision 200Da16114, Apr. 24, 2001).

In accordance with Article 54(2) of the Court Organization Act and Article 2 of the Rules on Judicial Assistants, the judicial assistant officers shall be entrusted with some of the duties performed by the past judges under Article 54(2) of the Court Organization Act and Article 2 of the Rules on Judicial Assistants. Even in cases where the judicial assistant officers perform their duties on the basis of the above provisions, in cases where separate appeals procedures are provided for the judicial assistant officers in regard to the errors in judgment, unless there are special circumstances to recognize that the judicial assistant officers clearly exercised their duties in violation of the purport of the authority vested to him, such as dealing with such duties for an unlawful or unjustifiable purpose, it cannot be readily

In the event that the judicial assistant determines the minimum sale price in the auction procedure of real estate in accordance with Article 54(2)2 of the Court Organization Act and Article 2(1)11 of the Rules on Judicial Assistants, where the judicial assistant determines the sale price in accordance with Article 54(2)2 of the Court Organization Act and Article 2(1)11 of the Rules on Judicial Assistants, such a task is conducted as a disposition of the court of execution pursuant to Articles 268, 97(1) and 126(1) of the Civil Execution Act, and an objection is raised as to the execution (Article 16(1) of the Civil Execution Act) or an objection against the decision on permission for sale (Article 268, Article 129, and Article 130(1) of the Civil Execution Act) or an immediate appeal against the decision on permission for sale (Article 268, Article 121 subparag. 5 of the Civil Execution Act). It is evident that an institutional device can be corrected through the appeal procedure.

With respect to the instant case, the fact that the judicial assistant officer of the court of execution decided to permit the sale of each of the instant real estate except for the non-party buildings presented at the minimum sale price in the auction procedure of this case. However, as seen above, the systematic corrective device under the Civil Execution Act has already been prepared for such defects, and the Plaintiff has been awarded the bid price of each of the instant real estate at KRW 1,456,00,000, which is remarkably less than the minimum sale price, and the fact that the above fact alone is not sufficient to recognize the State's liability under the State Compensation Act, and no other evidence exists to deem that the judicial assistant officer clearly exercised it contrary to the purpose of the authority vested in the court of execution, such as the minimum sale price or the sale permit price for unlawful or unjust purposes, and thus, it cannot be deemed that the above act was an unlawful act under Article 2 (1) of the State Compensation Act.

(3) Whether the preparation of a list of goods sold is illegal

If the contents of a public official’s duty imposed on a public official are not merely for the public interest or for the purpose of protecting the safety and interests of an individual of the members of the society, but entirely or incidentally for the purpose of regulating the order inside the administrative agency, the State shall be liable to compensate for the damage suffered by the victim due to the public official’s breach of such duty to the extent that proximate causal relation is acknowledged. In determining the existence of proximate causal relation, the State shall comprehensively take into account not only the probability of the occurrence of a general result, but also the purpose of Acts and subordinate statutes and other rules of conduct imposing the duty on a public official, circumstances after the act foreseeable from the purpose or function of the duty to perform, and the degree of damage (see Supreme Court Decision 2005Da62747, Dec. 2

Article 105 of the Civil Execution Act provides that a court of execution shall prepare a detailed statement of the subject matter of sale and keep the current status of the subject matter of sale in the auction procedure so that no one can see the current status of the subject matter of sale and a copy of the report on the current status of the subject matter of sale and the report on the current status of the subject matter of sale in the public by accurately grasping the current status of the subject matter of sale in the auction procedure and disclosing legal relationship thereto so that those who wish to purchase can easily obtain information necessary for the subject matter of sale by publicly announcing the current status and relationship of rights (see Supreme Court Order 2004Ma94, Nov. 9, 2004). Therefore, the court of execution shall accurately grasp the current status and legal relationship of the subject matter of sale based on the materials submitted by interested parties of the subject matter of sale or an execution officer who conducted the survey on the current status and relationship of the subject matter of sale, and if it is difficult to accurately grasp the current status and legal relationship of the subject matter of sale due to the characteristics of the auction procedure or limitations on the subject matter.

Therefore, in this case, I would like to examine whether the executing court or the public official in charge of auction provided false information about the current status of the real estate to be sold in the list of the goods sold in each of the instant real estate in violation of official duties, differently from the submitted documents or not.

According to the above facts, although buildings other than those presented in the remarks column of the statement of sale articles on each of the real estate in this case are not indicated in the real estate specification, it is ordinarily understood that buildings other than those presented are not included in the indication column of real estate in the specification of sale articles, buildings other than those presented in the report on the current status quo kept along with the specification of sale articles cannot be identified as the owner, and buildings other than the presented items are independent buildings of a significant size, and it is difficult to regard them as the accessories or correspondings of each of the real estate in this case. In such a case, in principle, it is desirable that the court of execution or the public official in charge of auction explicitly state that buildings other than those presented in the remarks column of the above sale specification are excluded from those subject to sale. However, even if the sale specification is not stated in the purport, if it is prepared in the above form, it is ordinarily understood that buildings other than the presented items are included in the sale object rather than the sale object. Furthermore, even if the above entry of the sale object is somewhat insufficient, it seems that it is insufficient to confirm other means such as the above report.

In addition, due to the characteristics of the real estate auction procedure or the limitations on the functions of the executing court, it is clear that the executing court has a limit to always identify the current status or legal relationship of the real estate subject to sale and not to announce them to the bidding participants. The applicant for the purchase also recognizes these limitations and confirms the current status and legal relationship of the real estate subject to sale separately by his/her responsibility and judgment based on the specifications of sale objects, etc. Therefore, the mere fact that the detailed statement of the sale object was prepared in a somewhat incomplete or incomplete form is not that different from the above facts or erroneous matters, the execution court or the public official in charge of auction cannot be evaluated as having provided false information about the present status and legal relationship of the real estate subject to sale in violation of his/her duties.

However, as seen earlier, the execution court of this case erred in determining the minimum sale price of a building other than the presented one, but included the appraised value of the building other than the presented one while excluding the sale subject to the sale, and also stated the wrong minimum sale price. However, this is irrelevant to the preparation of the specifications of the sale object, the current status of real estate which is the object of the keeping, or the legal relationship, and the defect of the determination of the minimum sale price is merely a transfer to the specification of the sale object, and thus, it cannot be deemed as an error in preparing the independent

Therefore, the plaintiff's assertion of state liability for damages is not justified because of the error in preparing a specification of goods sold.

(4) Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Indication of Real Estate: omitted

Judges White Jin-jin (Presiding Judge)