The legal nature of the decision of the court of execution in a lump sum auction (=the discretionary act) and the case where a lump sum auction is required for two or more real estate for the purpose of auction belonging to the same person

Article 98(1) of the Civil Execution Act

[Plaintiff-Appellant] 2001Ma3688 dated August 22, 2001 (Gong2001Ha, 2309)

Re-appellant

Chuncheon District Court Order 2003Ra8 dated March 31, 2003

The order of the court below is reversed, and the case is remanded to the Gangnam Branch Branch Court Panel Division of the Chuncheon District Court.

1. The judgment of the court below

The court below rejected the Re-Appellant's assertion that the real estate subject to the bid of this case (hereinafter referred to as "the real estate of this case") is the same Ri (number 2 omitted), land (number 3 omitted), land (number 4 omitted), land (number 4 omitted), and access road to the hotel building located at ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s real estate (hereinafter referred to as "the real estate of this case"), which is the real estate subject to the bid of this case, is likely to cause enormous damages to the operation of the hotel, on the ground that there is no evidence to find that the executing court could sell each of the land of this case more than the divided auction.

2. The judgment of this Court

In the event there are two or more real estate for the purpose of auction, whether it should be a divisional auction or a blanket auction in the case where it belongs to the same person as the same person as the security, shall be determined by the court of execution at the discretion of the court of execution. However, such discretion of the court of execution shall not be limited, but shall be limited to the case where land and buildings are sold at the same time, the land and buildings constitute a single enterprise facility, and where sale of two or more parcels of land is conducted by installments sale, if only a part of the land is sold by installments sale, it shall be deemed that it is reasonable to purchase the remaining real estate collectively, considering the location, form, use relation, etc. of the various real estate, such as the case where the remaining land becomes a blind land and it is deemed that it can be sold at a significantly higher level than the case where the value may remarkably decline, the court of execution shall proceed with the auction procedure by the method of a blanket auction, unless there is a reason to deem that the blanket auction is unfair or it is impossible to hold a blanket auction.

According to the records, the whole of the real estate in this case, including each of the land in this case, is used as a hotel site such as an access road to ○○○○○○ hotel, etc., among each of the land in this case, and according to the results of the investigation and appraisal conducted by the court of execution, the land in this case conflict with the road, which is urban planning facilities, and is being used as an access road to the ○○○ hotel building. Thus, if the above land is divided and sold out, it seems that ○○○ hotel building and its site will be a blind site without an access road. In the case of the above land, the land in this case is a blind site, and the land in this case is currently used as a hotel site such as an access road to ○○○○○○○○, etc., even at the time of winning the contract, each of the land in this case is being used as a commercial site, and each of the land in this case, including the opinion of the court of execution, can not be determined as a whole as an access to each of the real estate in this case.

In light of these circumstances in light of the above legal principles, since each land of this case is used as the site of the hotel of this case as well as the other land, it shall be deemed that there exists a close relation with each other in relation to the use of the land of this case, and it shall be deemed that a lump sum auction is expected to increase the utility of the entire real estate of this case and the value of the land of this case would be significantly high. In light of the location, form, etc. of each land of this case and the remaining land of this case and the building of the hotel, it shall not be deemed that there is no circumstance that the remaining land of this case shall not be sold together with the hotel site and the building of the hotel, so it shall be deemed reasonable to hold the entire real estate of

Nevertheless, the court below did not deliberate and decide whether each land of this case constitutes farmland necessary for the qualification certificate for acquisition of farmland; where each land of this case is used as an access road to the hotel of ○○○, and thus divided auction is conducted, the hotel site, etc., the actual conditions of the use of each land of this case; and whether each land of this case cannot be sold together with the remaining hotel site; and even if all of the real estate of this case is sold in a lump sum, there is no evidence to deem that the sale of each of the real estate of this case can be remarkably high-priced compared to the case of divided auction. Thus, the court below erred by misapprehending the legal principles as to the total auction, which affected the conclusion of the decision; thus, the ground for re-appeal pointing this out is justified.

Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)