[낙찰허가][공1999.3.15.(78),425]
In the case of a voluntary auction, where the decision to permit the successful bid has been made by continuing the procedure despite the death of the debtor or owner before or during the commencement of the procedure, the validity of the decision to permit the successful bid (negative)
Since an auction to enforce the right to collateral security on real estate is conducted in relation to the debtor indicated in the registration of establishment of the right to collateral security and the owner of the mortgaged real estate, even if the debtor or owner died before or during the commencement of the auction procedure, the decision of permission is not erroneous even if the successor of the property permits the successful bid of the mortgaged real estate by continuing the auction procedure, unless he/she requests the auction court to clarify the death and treat himself/herself as an interested person.
Articles 603, 633, 642, 724, and 728 of the Civil Procedure Act
Supreme Court Order 66Ma66 dated February 14, 1966 (No. 14-1, 61), Supreme Court Order 69Ma581 dated September 23, 1969 (No. 17-3, 124), Supreme Court Order 88Ma45 dated March 2, 198 (Gong198, 649), Supreme Court Order 97Da39131 Decided October 27, 198 (Gong1998Ha, 2746)
Appellant 1 and 3 others
Seoul District Court Order 98Ra1065, 1066 dated August 18, 1998
All reappeals are dismissed.
The grounds of reappeal are examined.
As to the ground of reappeal No. 1
The argument that the appraisal price or successful bid price of the object of auction of this case is low in comparison with the market price is merely a dispute over the successful bid price, and it does not constitute a legitimate ground for re-appeal. The order of the court below to the same purport is just and there is no violation of law such as the theory
As to the ground of reappeal Nos. 2, 3 and 4
Since an auction to enforce the right to collateral security on real estate is conducted in relation to the debtor indicated in the registration of creation of the right to collateral security and the owner of the mortgaged real estate, even if the debtor or owner died before or during the commencement of the auction procedure, the decision of permission is not erroneous even if the successor of the property permits the successful bid of the mortgaged real estate by continuing the auction procedure, unless the debtor or owner clearly expresses his/her death to the auction court and requests it to be treated as an interested party (see, e.g., Supreme Court Order 8Ma45, Mar. 2, 198; Order 88Ma45, Sept. 23, 1969; Order 65Ma6, Feb. 14, 1966).
According to the records, although the non-party, who is the founder of the right to collateral security of this case, had already died before the application for auction of this case, the auction court proceeded with the auction procedure by designating the non-party who had already died at the auction court as the owner of the non-party. The non-party 2, the non-party's heir, the non-party's heir, and the non-party 3 and the non-party 4 were not deposited a cash guarantee equivalent to 1/10 of the successful bid amount under Article 642 (4) of the Civil Procedure Act in submitting an immediate appeal against the decision of permission for successful bid of this case on April 1, 1998, and the auction court rejected it by its decision on the ground that there was no document proving that the right to collateral security of this case has been offered at the above immediate appeal of this case on the 15th of the same month. Thus, if the facts were succeeded to the status of the non-party's heir from the time of the above decision of rejection, and therefore, the above guarantee should be provided as an immediate appeal.
Therefore, all reappeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jae-soo (Presiding Justice)