[2] Measures to be taken by the court of execution on an immediate appeal against the decision of permission for sale, which was brought by a person not listed in any of the subparagraphs of Article 90 of the Civil Execution Act, and measures to be taken by the court of execution where the records are sent to the appellate court without the decision of rejection of the appeal

[3] In a case where a decision to commence double auction has been rendered pursuant to Article 87(1) of the Civil Execution Act, and an auction has been conducted pursuant to the execution procedure of the preceding case, the standard for determining whether an interested party is an interested party (=the prior auction case), and whether an applicant for double auction is an interested party entitled to file an immediate appeal against the decision to permit the successful bid in the preceding case, who is a junior mortgagee established after the completion period to demand a distribution in the preceding case

[2] Since it is evident that an immediate appeal against the decision of permission for sale by a person who does not fall under any of the subparagraphs of Article 90 of the Civil Execution Act is unlawful and cannot be corrected or corrected, a court of execution shall dismiss the immediate appeal by decision pursuant to Article 15 (5) of the same Act. In case where the court of execution has sent records to the appellate court without the decision of rejection of the appeal, the appellate court shall dismiss the appeal at the appellate court.

[3] Article 87(1) of the Civil Execution Act provides that when there exists an application for other compulsory auction against a real estate for which the procedure for compulsory auction or the decision to commence an auction procedure for exercising a security right, the court shall re-decision to commence the auction, and in such a case, the scope of interested parties shall be determined based on the preceding auction case. In such a case, the person who has a subordinate secured right established after the completion period for demanding a distribution in the preceding case, who did not report any right by the deadline for demanding a distribution, is not an interested party who can file an immediate appeal against the decision to permit a successful bid made in the preceding case.

An immediate appeal against the decision of permission for sale of real estate under Article 129(1) and (2) of the Civil Execution Act may be filed only by interested parties, buyers and bidders. Here, interested parties refers to the execution creditors under each subparagraph of Article 90 of the Civil Execution Act, and creditors, debtors and owners, and creditors who have demand distribution by executory exemplification, and right holders on the real estate entered in the register, and persons who have proved their right thereto. Even though those who have de facto interest in the auction procedure are not listed above, if they are not those listed above, they shall not be deemed interested parties in the auction procedure (see Supreme Court Decision 2002Da52312, Jul. 22, 2004). Since it is evident that an immediate appeal against the decision of permission for sale of real estate by a person who does not fall under this case is unlawful and cannot be corrected, the execution court shall dismiss by its ruling pursuant to Article 15(5) of the Civil Execution Act, and where the execution court has sent the record of appeal to the appellate court without making a decision to dismiss an immediate appeal, the appeal shall dismiss the appeal (see Supreme Court's appeal.

In addition, Article 87(1) of the Civil Execution Act provides that when there is another application for a compulsory auction against the real estate on which a decision to commence the compulsory auction procedure or the auction procedure for exercising a security right is made, the court shall again decide to commence the auction and shall first sell the real estate according to the execution procedure, so in such a case, the scope of interested parties shall also be determined based on the preceding auction case.

In light of the records, the court of execution applied for an auction on the real estate subject to sale of this case to Suwon Mutual Savings Bank Co., Ltd. on July 24, 2002 for an auction on July 24, 2002 and around 8320 (hereinafter "prior auction case"), and the Re-appellant did not report any right until December 16, 2002, which is the completion date for demanding a distribution of the preceding case. On November 13, 2003, the subordinated Mutual Savings Bank Co., Ltd., which was a subordinate mortgagee of the above real estate on November 15, 2003, applied for an auction on some of the above real estate on the ground that the interested parties filed an application for an auction on the part of the above real estate on November 15, 2003 at the time of the execution procedure, and the court of execution continued the auction in accordance with the execution procedure of the preceding case, and the Re-Appellant did not report the completion date for demanding a distribution after the auction of this case.

Therefore, the immediate appeal of this case is filed by a person who is not an interested party, and the court of execution shall dismiss it by decision, and as long as the court of execution did not dismiss it, the court of appeal should have dismissed the appeal of the re-appellant, who is not an interested party, on the ground that the appeal is filed by the person who is not an interested party, and the defect cannot be corrected. However, the court of appeal should have dismissed it on the ground that the appellant's appeal, which is not an interested party, and

Therefore, the order of the court below is reversed, and this case is sufficient to be tried on the basis of the above facts, and it is decided as follows.

The appellant’s appeal is unlawful as it is not an interested party entitled to file a complaint on the decision of permission for sale of this case as stated above, and thus, it cannot be dismissed.

Therefore, it is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)