In a voluntary auction of real estate, unlike a compulsory auction requiring an executory title of debt, whether there exists a mortgage, which is the basis of auction, can not only be a ground for objection against the decision of commencement of auction, but also a ground for appeal against the decision of permission of auction (see Supreme Court Order 80Ma166, Sept. 14, 1980). Therefore, in case where the owner of real estate files an immediate appeal by asserting the absence of a mortgage against the decision of permission of auction, the appellate court shall examine the absence of a right and determine the existence of the reason for appeal.

According to the records, among the auctioned real estate of this case, 121 to 401.9 square meters from Jongno-gu Seoul Metropolitan Government's resignation is 121 to 195 square meters from October 23, 1987; 121-1 to 65.6 square meters from the same 121-2, 121-2, 121-3, 23.1 square meters from the same 121-4, 121-2, 42.3 square meters from the same 119-2, 62.8 square meters from the above 19-2, which were combined with the auctioned real estate of this case, and thus, the court below did not establish a right to collateral security against the above 121-2, 19-3, 1986, which was the time of the establishment of the right to collateral security, and the purport of the decision of this case's 3-2, 301 square meters from the above part of the auctioned real property of this case was unlawful.

Therefore, without examining the remaining grounds for reappeal, we reverse the order of the court below and remand the case to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)