[경매절차개시결정취소결정에대한재항고][집10(2)민,383]
claim indicated in the name of the debtor and the validity of conditional deposit of performance
(a) The deposit for repayment shall not be effective where it is made in return for the revocation of the auction procedure; and
B. An objection may not be raised against the decision on commencement of compulsory auction on the premise that there is no claim indicated in the relevant debt name, unless the judgment with a title of debt was revoked by a lawsuit for retrial.
Article 457 of the Civil Act
Yang-ray et al.
Seoul High Court Decision 61Ra133 delivered on June 17, 1961, 201
According to the records, it is evident that the deposit for repayment on the part of the re-appellant is the counter-payment for the cancellation of the auction procedure. Thus, the deposit for repayment on the part of the re-appellant is not a claim receipt unless the re-appellant's non-performance of the compulsory auction procedure is revoked. Therefore, the above deposit has no validity.
Nevertheless, the court below's decision that the above deposit has the effect of the repayment of the provisional loan cannot be deemed to be unlawful, and the arguments are reasonable, and as long as the judgment which became the title of the debt has not been revoked by the lawsuit for retrial, an objection cannot be raised against the decision to commence compulsory auction under the premise that the claim indicated in the name of the debt has not existed unless the judgment which became the title of the debt has been revoked by the lawsuit for retrial, and as seen earlier, as long as the claim indicated in the name of the debt is not completely extinguished because the deposit has no effect of repayment, this case's objection is dismissed as
Justices Cho Jin-jin (Presiding Justice)