[낙찰허가][공1998.10.15.(68),2490]
Whether the omission of notification of the bid date and the bid date for interested parties is subject to ex officio determination of the appeal on the decision granting the granting of a successful tender (negative)
Article 633 subparag. 1 of the Civil Procedure Act provides that "when it is impossible to execute" as one of the grounds for objection to the successful bid, and Article 617(2) of the same Act provides that "the date of auction and the date of auction shall be notified to the interested parties," barring special circumstances, the compulsory execution shall not be lawfully continued without such date's notification. However, the omission of such date's notification does not constitute a ground for refusing ex officio adjudication unless there is an objection by the interested parties, and as a appellate trial, it does not constitute a ground for ex officio determination, unless an interested party raises an objection to the successful bid or explicitly asserts it as a ground for appeal pursuant to Articles 643(3) and 635 of the same Act. The same applies to a bid as applied mutatis mutandis pursuant to Article 663(2) of the same Act.
Articles 617(2), 633 subparag. 1, 635(2), and 643(3) of the Civil Procedure Act
Supreme Court Order 91Ma239 Dated December 16, 1991 (Gong1992, 633) Supreme Court Order 94Ma759 Dated September 22, 1994 (Gong1994Ha, 278), Supreme Court Order 94Ma1716 Dated March 30, 1995 (Gong1995Sang, 1750) Supreme Court Order 95Ma488 Dated July 26, 1995 (Gong195Ha, 2957), Supreme Court Order 95Ma1053 Dated December 5, 1995 (Gong196Sang, 322)
Re-appellant
Suwon District Court Order 98Ra391 dated June 24, 1998
The reappeal is dismissed.
The grounds of reappeal are examined.
Article 633 subparag. 1 of the Civil Procedure Act provides that "when it is impossible to execute" as one of the grounds for objection to the successful bid, and Article 617(2) of the same Act provides that "the date of auction and the date of auction shall be notified to interested parties," barring special circumstances, compulsory execution shall not be lawfully continued without such date. However, the omission of such date's notice shall not be a ground for refusing ex officio adjudication, unless there is an objection by interested parties, nor shall it be a ground for ex officio determination as an appellate court, unless an interested party raises an objection to the successful bid or explicitly asserts it as a ground for appeal under Articles 643(3) and 635 of the same Act (see Supreme Court Order 91Ma239, Dec. 16, 1991). The same applies to a bid to which Article 663(2) of the same Act applies mutatis mutandis (see Supreme Court Order 91Ma239, Dec. 16, 199).
According to the records, although the court of execution made a report on the right on March 31, 1998 with respect to the auction real estate after the registration of the request for auction of this case, and the court of execution made a notification on May 4, 1998 on the bid date of 10:00 and the bid date of 10:00 on April 24 of the same year and notified the interested parties by mail delivery, the court of execution did not notify the re-appellant. However, the court of execution made a decision to permit the successful bid on the bidding date of this case, and the court of execution made an immediate appeal against this decision on the bid date of this case, and the court of appeal did not have any assertion on the grounds that the decision to permit the successful bid of this case cannot be cancelled ex officio without any grounds for appeal, and even if the bid date of this case could not continue lawfully by omission of the notification of the date, the court below did not have any errors in the decision of rejection as to this procedure's omission and omission of the appeal.
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Jae-soo (Presiding Justice)