[부동산경락허가결정에대한재항고][집9민,031]
In real estate auction proceedings concerning wage claims that require simultaneous performance, the actual decision made to commence an auction without confirming the payment of counter-performance or the provision of performance by the creditor;
In a case where a creditor executes a compulsory execution on a claim which requires simultaneous performance, it is necessary to enforce the claim simultaneously with the opposite payment. Therefore, the execution court may not commence the execution unless it proves by a certificate that the creditor has performed the opposite payment or has offered the performance.
Sickets
Gwangju High Court Decision 60Du57 delivered on January 14, 1961
As to the ground of appeal by the Re-Appellant
In a case where the court of execution makes compulsory performance of the claim for benefit which requires simultaneous performance, it is necessary to enforce the existing claim simultaneously with the opposite payment. Therefore, the court of execution may not commence the execution unless the creditor proves that the creditor has performed the opposite payment or provided the previous performance in relation to the opposite payment, and if the court of execution has determined the record on this case, it may be accepted that the court of execution has not collected evidentiary documents as to the delivery of the goods indicated in the name of the obligation in the present case or provided the performance in relation to the decision of commencement of auction of the real estate. The decision of commencement of auction shall not be unlawful in light of the reasoning of the court below.
Justices Jeon Soo-tae (Presiding Justice)