The case holding that there was an error in violation of documentary evidence in the decision of appeal review

In the appellate trial, whether to open the pleadings or to examine interested parties belongs to the discretion of the appellate court, but in the event that the appellant claims that the establishment registration of a neighboring mortgage, which is the basis of the auction, is null and void, the lower court should not only open the pleadings, deliver the request for auction by the mortgagee, but also give the appellant an opportunity to make a statement, explanation, or evidence by examining or delivering the request for auction as well as the appellant. However, the lower court merely requested the appellant to examine only the appellant and submit the supporting documents, but the mortgagee, who is the interested party, also did not examine the witness, to the effect that the establishment registration of a neighboring mortgage is null and void without examining the facts.

Article 33(2) of the Auction Act; Article 643(1) of the Civil Procedure Act

Hyundai Mutual Savings Bank

Busan District Court Order 79Ra170 Dated December 14, 1979

The original decision is reversed and the case is remanded to Busan District Court Panel Division.

The Re-Appellant's grounds of reappeal are examined.

According to the records, the court below acknowledged the fact that the non-appeal 2 and the non-appeal 3 et al., the non-appeal 1, who were the owner of the original auction real estate and the debtor's appellant, submitted the supporting documents, were forged documents necessary for the registration of the establishment of a neighboring mortgage on the real estate, and determined to the effect that the decision on the permission of the auction on the basis of the registration of the invalidity of the cause thereof is improper.

In light of the records, it is insufficient to acknowledge that the registration of creation of a new mortgage in the above case was invalid due to forged documents. Thus, in the hearing of the appeal case, it is insufficient to acknowledge such facts. However, in the case of the above main case, the court below should conduct the hearing such as opening the pleadings or conducting the hearing and offering the applicant for auction, the applicant for auction, and the applicant for auction, with an opportunity to make a statement, explanation or present evidence. However, although the court below should conduct the hearing without holding it, it is necessary to examine only 1 of the above appellant, and only to submit the supporting documents, and the re-appellant, who is the interested party, submitted the supporting documents, without giving the opportunity to do so, it is hard to find that the registration of creation of a new mortgage in the above case is invalid due to the lack of an opportunity to do so. Thus, it should not be reversed or any other ground for reappeal's appeal is reversed without any violation of the rules of evidence or any other ground for re-appeal's discretion.

Therefore, the original decision is reversed and the case is remanded to the Busan District Court Panel Division which is the original judgment. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hong-chul (Presiding Justice)