(b) In an auction under the factory mortgage, the case holding that the defects in which part of machinery, apparatus, etc. is not indicated in the specification of goods at auction shall not be grounds for rejection of the successful bid;

(b) In an auction under the factory mortgage, the case holding that the defects in which part of the machinery, apparatus, etc. is not indicated in the specification of the auction shall not be grounds for rejection of the successful bid;

1. According to the reasoning of the order of the court below, in the case where the auction court, which held the auction procedure on August 17, 1993, with respect to the land and buildings of the factory of this case and related machinery, apparatus, etc. (the list under Article 7 of the Factory Mortgage Act), at the request of the Korea Exchange Bank, did not permit the auction on the ground that the auction procedure was conducted on August 17, 1993, to the re-appellant who purchased the highest bid on the date of auction, and did not exclude existing machinery and apparatus from the list of objects subject to auction, the court below determined the minimum auction price on the ground that the appraisal document of appraisal which assessed only the remaining objects except for the first one, and did not exclude machinery, apparatus, etc., but rejected the auction on the ground that the first instance court's decision which rejected the auction on the ground that the appeal did not have any serious reason for non-permission under Article 7 of the Factory Mortgage Act, the court below rejected the auction procedure's decision on the ground that it did not have any serious reason for non-permission under the Civil Procedure Act.

2. The current status of Article 617-2 of the Civil Procedure Act (Article 603-2), along with the inspection of the current status by the recipient of the auction (Article 603-2), introduced a detailed statement of the auction items (Article 603-2), and made the executing court prepare and keep a copy of the list of the auction items, and made it available for the public perusal. The purpose of Article 617-2 of the Civil Procedure Act is to indicate the items subject to auction to the general public, announce their current status and legal relationship so that those who wish to purchase can easily obtain information necessary for the items subject to auction, thereby preventing unexpected damages. Accordingly, Article 150 of the Civil Procedure Rule requires the public to keep a copy of the detailed statement of the auction items by one week prior to

However, these specifications of objects at auction are not only a document stating the court's awareness, and they belong to the act of fact, and they are not determined by the preparation, or they do not affect the legal relationship under the substantive law, and they are not recognized as a public good. On the other hand, it is difficult to expect only that the contents of items to be prepared by the auction court are objectively detailed and accurate due to the characteristics of auction procedure or limitations of functions of the auction

Therefore, if there is a defect that does not affect the result of an auction in the preparation of a specification of auction objects, it shall not be deemed a ground for refusing an auction, and whether the defect is sufficient to permit an auction or not, it shall be reasonably determined in accordance with specific cases in light of the purport of the specification of auction and auction of real estate, focusing on the intention of purchase or the degree of influence on the applicant for general purchase in determining the bid price.

3. According to the records, the mortgage of this case is deemed to have established a factory mortgage by agreement under the Factory Mortgage Act, and such mortgage shall, in principle, extend to the land and building attached to the factory under Articles 4 and 5 of the same Act, as well as to the machinery, apparatus, and other objects of the mortgage (Article 7). However, in the case of applying for a registration of the mortgage, the list of objects of the mortgage shall be submitted (Article 7), and in the case of separation by the owner of the factory with the consent of the mortgagee, the mortgage of the factory shall be extinguished (Article 8), and in the case of separation by the owner of the mortgage (Article 4 and 5), unless the objects of the mortgage are delivered to the third purchaser by the third party (Article 249 of the Civil Act).

Therefore, in cases where a factory mortgage is executed, the basic land, building and things that affect the effect by the Factory Mortgage Act should be held in a lump sum, so that an application for auction or a decision to commence auction should be made in a lump sum, as well as a decision to commence auction or a report on the purchase price should also be made in a lump sum, and a part of the decision cannot be divided for auction or successful bid, and a partial withdrawal cannot be permitted (see, e.g., Supreme Court Order 65Ma635, Jul. 21, 1965; Supreme Court Order 65Ma950, Dec. 29, 1969; Order 69Ma920, Dec. 9, 1969; Order 70Ma935, Feb. 19, 197; Order 79Ma348, Dec. 17, 1979; Order 79Ma348, Mar. 14, 1985; Order 29, Aug. 29, 2097).

Therefore, in principle, the machinery, apparatus, etc. which is the object of a factory mortgage for which a request for auction has been filed shall not be separated pursuant to Article 8 of the same Act. However, the object which is not destroyed or lost, or acquired in good faith by a third party shall be excluded from the object of auction. However, the object may be excluded from the object of auction without being excluded from the indication itself of the specification of the object of auction. However, it may be excluded from the indication column of the object of auction by stating that the object was destroyed or lost, or acquired ownership by a third party. Even if the object is not in the factory's land or building or its location is unknown, unless it does not fall under the above case, the possibility that the successful bidder can assert the effect of the auction on the object of auction can not be ruled out. In addition, in the auction procedure, the auction court cannot investigate and disclose the fact at the auction court, and considering this, if the cause or circumstance is not clear, it can be said that the object of auction court should be in line with the purport of the system.

4. As to the instant case, it is understood that the ○ ○ ○ Appraiser’s appraisal report states that the machinery, apparatus, etc. of 301 points is missing, and this is understood that this is not installed in the land of the factory and its location cannot be known unless there are special circumstances. As seen above, in the instant case where a request for auction was made for the whole of the land and buildings of the instant factory and the machinery, apparatus, etc. under Article 7 of the same Act, and the decision to commence auction was rendered, the mere fact that part of the machinery, apparatus, etc. which became the object of factory mortgage was unknown at the time of the appraisal is not the defect itself nor the fact that the whereabouts are not known is not the defect.

However, according to the records, the detailed statement of the auction of this case is the same as the report of the inspection of the present case's present situation where the indication of the real estate was added. The machinery and apparatus did not confirm the entrance of workers as they kept the entrance and the key. The ○○ Appraisal Board conducted an appraisal only for the land of the factory of this case, and the machinery and apparatus of 220 points which can be confirmed, and the land price of the building was monthly, and the 220 points which can be confirmed, and the ○○ Appraisal Board did not seem to have much use since it was neglected only on the part of the shop of this case's land, the building price of the building of this case, and the 220 points which can be confirmed, and it seems that the auction court did not determine the bid price based on the above appraisal. The Re-Appellant also seems to have determined the bid price by the machinery and apparatus of this case. According to the auction protocol of August 17, 193, the total bid price of this case is 1,510,000 won,000 won.

On the other hand, the applicants for purchase and copies of the survey report and the assessment report, which are kept along with the specification of goods at auction, could be perused to identify the facts and determine whether to participate in the purchase and the bid price. Thus, the above defects in the specification of goods at auction in this case cannot be seen as affecting the intention of the applicants for the auction at auction at this case or the decision of the bid price, and such defects cannot be deemed to constitute a serious defect in the preparation of the specification of goods on the grounds of the refusal of the bid at issue. The same is more true in the case of this case where the re-appellant, who is the bidder, did not object to this, and rather the Re-Appellant

5. Meanwhile, in light of the fact that the Korea Exchange Bank submitted a written withdrawal of a request for part of auction on August 23, 201 of the same year, which was immediately after the decision of rejection of the above successful bid, the Korea Exchange Bank shall be deemed to have failed to pay a delay or to have no intention to pay a delay, and shall not be included in the minimum auction price by assessing the machinery and apparatus whose whereabouts are unknown, and in the situation where the right to pay a delay is not exercised, under the circumstances where the cause or circumstance of the unknown whereabouts is not known and the right to pay a delay is not exercised, the auction court shall not be included in the minimum auction price by assessing the machinery and apparatus whose whereabouts is unknown, and the auction court shall not have the responsibility to pay a delay by investigating the possibility of a delay. Thus, in the case of this case where the mortgagee or owner is not urgent, it is difficult for the court of auction to find that there is a serious defect by conducting the auction procedure for the actually existing goods without exercising the right to pay a delay (see Supreme Court Order 67Ma14, July 27, 1966).

6. Thus, the court below's decision of the court of first instance which rejected ex officio a successful bid on the ground that " there is a serious defect in the preparation of the specification of goods" is erroneous in the misunderstanding of legal principles as to factory mortgage and Articles 617-2, 633 subparagraph 6, and 635 (2) of the Civil Procedure Act, which led to the failure to exhaust all necessary deliberations. The grounds for appeal pointing this out are as follows.

Therefore, the order of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)