1. Basic facts

The facts duly admitted by the court below are as follows.

A. Our Bank applied for voluntary auction of the instant real estate on January 5, 2006 at Suwon District Court No. 2006ta-943, Jan. 18, 2006, based on the right to collateral security on the land (hereinafter collectively collectively referred to as the “instant real estate”), which was owned by Nonparty 1, 848m2 and its ground (number omitted). It received a decision of voluntary auction from the judicial assistant officer of the court of execution on January 18, 2006.

B. On March 17, 2006, the Korea Es.S. Specialized Asset-Backed Securitization Co., Ltd. submitted to the Financial Supervisory Service an application for registration of transfer of assets including the acquisition of collateral on the instant real estate and the secured debt from our bank under the Asset-Backed Securitization Act, and acquired the aforementioned collateral-mortgage and secured debt, and subsequently reported the change of the collateral-mortgage holder to the executing court on April 25, 2006, upon notification of the transfer of credit to Nonparty 1 of our bank.

C. On January 11, 2007, the Re-Appellant and Non-Party 2 filed an application for purchase of the instant real estate on the third auction date. The Re-Appellant declared the purchase at a higher price by indicating the purchase price of KRW 1,475,100,00, and KRW 1,606,00,000 by Non-Party 2 as each purchase price. However, the execution officer belonging to the Suwon District Court provided KRW 141,143,700, which is the minimum sale price of the above sale date, as the guarantee for the above purchase, the non-party 2 filed a report on the purchase by Non-Party 141,41,437,000, which is the minimum sale price of KRW 141,143,680, which is below KRW 20, as the highest bidder, and the non-party 2 filed an objection against the above decision.

D. On January 18, 2007, the judicial assistant officer of the court of execution rendered a provisional decision to refuse the sale of the real estate of this case to the Re-Appellant under Article 123(2) of the Civil Execution Act on the ground that the court of execution did not permit the Re-Appellant, who is the highest bidder, due to a significant fault in the auction procedure of this case. The Re-Appellant filed an immediate appeal against this decision. However, on February 1, 2007, the court of execution decided to authorize the provisional decision to refuse the sale of the above real estate by the judicial assistant officer.

2. The judgment of the court below

In light of the fact that the guarantee system for a request for purchase is aimed at ensuring the propriety of sale by excluding the request for purchase by a person without a strong intention of purchase, the court below determined that the execution court's approval of the decision to deny the sale by the judicial assistant's judicial assistant's authority is justifiable, since it is difficult to deem that the report of purchase made by Nonparty 2 is null and void and the decision of the next highest bidder as the highest bidder is consistent with the purpose of the guarantee system for the request for purchase, and it is also detrimental to the interests of interested parties as to the procedure of voluntary auction in this case such as the debtor and creditor, etc.

3. The judgment of this Court

However, we cannot accept the above judgment of the court below for the following reasons.

A. As stated in the court below, Article 113 of the Civil Execution Act provides an applicant for a purchase with a guarantee meeting the amount and method determined by the court of execution as prescribed by the Supreme Court Regulations, and Article 63 of the Civil Execution Rule provides that the guarantee amount for a request for purchase shall be 1/10 of the minimum sale price in the fixed tender, and the court shall set the guarantee amount for the request for purchase differently when it is deemed reasonable by the court. Meanwhile, Article 64 of the Civil Execution Rule provides a guarantee for a request for purchase to an execution officer by submitting it along with the bidding slip.

B. In a case where the guarantee submitted by the bidder to an execution officer, along with the bid slip, falls short of either 1/10 of the minimum sale price or the criteria set by the execution court, the purchase cannot be permitted to the bidder pursuant to the provisions of Article 113 of the Civil Execution Act, and Articles 63 and 64 of the Rules of Civil Execution. Thus, the execution officer shall treat the bid slip as invalid, and determine the next person in priority as the highest bidder (see Supreme Court Order 98Ma626, Jun. 5, 1998).

C. Such principle shall be applied uniformly in light of the promptness, clarity, predictability, etc. required in the tendering procedure, and its application does not vary on the ground that the insufficient amount of the guarantee provided by the bidder is extremely small, and such uniform treatment does not conflict with the purport of the guarantee system for the purchase. It is apparent that there is a view of the lower court that the interests of interested parties, such as the debtor and creditor, should be considered in the enforcement procedure, but it should not be based on the premise of a legitimate sacrifice of the bidder.

D. Article 56 subparag. 3 of the Civil Execution Rule provides that a public announcement of the amount of security for an application for purchase and the method of providing a guarantee shall also be made two weeks prior to the date of sale. According to Article 31 of the Guidelines for Handling the Auction Procedure for Real Estate, etc. (Korean Residents 2004-3 and the Rules of Court Decision No. 1119), an execution officer shall notify the participants of the method of entering the fixed bid list and the method of providing a guarantee for an application for purchase prior to the commencement of the bidding on the date of sale. In the instant voluntary auction procedure, the said public announcement and notice are deemed to have been made even in the instant voluntary auction procedure. Nevertheless, it is difficult to view that Nonparty 2 stated that the amount is 141,143,680 won which falls short of the amount set forth in the column for the security

Therefore, the court below's decision that the execution officer belonging to Suwon District Court invalidated the non-party 2's purchase report and decided the non-party 2 as the highest bidder in the auction procedure of this case constitutes a case where there is a serious fault in the auction procedure of this case. The court below committed an unlawful act that affected the judgment by violating the relevant provisions of the Civil Execution Act and the rules of civil execution. The ground for reappeal pointing this out

4. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)