A party’s assertion that a compulsory auction based on an invalid notarial deed is also null and void on the ground that a person indicated as an executor of the auction procedure, while the auction procedure is in progress with the title of debt, shall be left alone, and rather, by asserting repayment, takes the appeal procedure against the decision of permission of auction by asserting that the successful bidder is paid up to the successful bid price.

In a case where a person indicated as an execution obligor on an invalid notarial deed argues the invalidation of a notarial deed by asserting the invalidation of the notarial deed in the name of his/her debt, and has neglected it without all such assertion despite the fact that it was possible to stop the auction procedure, and instead, in a case where the notarial deed was repaid on the premise that it is valid and received a dividend of the proceeds of auction after the successful bid decision became final, the person indicated as the execution obligor has granted to the successful bidder the trust that the notarial deed is valid, barring any special circumstances, and thus, it is reasonable for the successful bidder to have such trust, and therefore, the latter person’s assertion that the compulsory auction is void on the ground that the notarial deed is invalid against the notarial deed and the good faith principle should be deemed invalid.

Article 2 of the Civil Act, Article 522 of the Civil Procedure Act

Supreme Court Decision 69Da1228 delivered on June 5, 1973 (No. 21 ② citizen 45)

Plaintiff

[Defendant-Appellant] Kim Jae-jin, Counsel for defendant-appellant

Supreme Court Decision 90Da20473 Delivered on April 26, 1991

Seoul Civil District Court Decision 91Na11598 delivered on January 8, 1992

The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.

The defendant's attorney's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below found that the defendant applied for a compulsory auction on the real estate of this case owned by the plaintiff based on the executory exemplification of the promissory note No. 1 as stated in the judgment of the court below that the non-party 1 as the plaintiff's mother forged a promissory note and power of attorney in the process of the compulsory auction and thereby commissioning the plaintiff's agent with the authentication of the above promissory note No. 1 as the agent of the plaintiff. Since the execution certificate of this case is invalid since the execution certificate of this case was made by the commission of the non-party 1 who is not authorized to act for the plaintiff, the above compulsory auction made in the name of debt cannot acquire the ownership of the real estate of this case. Thus, the defendant cannot acquire the ownership of the real estate of this case since the compulsory auction takes effect in relation to the plaintiff as the executory agent, barring any special circumstance.

2. In light of the records, we affirm the above fact-finding by the court below, and there is no error of finding facts in violation of the rules of evidence as argued by the theory of lawsuit, and there is no reason to discuss this issue. Furthermore, although the plaintiff ratified the declaration of intention to recognize the execution on the defective notarial deed and recognized the defendant's acquisition of ownership on the real estate in this case, the court below erred in the misapprehension of legal principles as to ratification, but it is erroneous in the judgment below which affected the purport of remand in violation of the purport of remanding the judgment of remand, and there is no reason to discuss this point.

3. However, if a person indicated as an executor on an invalid notarial deed asserts the invalidation of the notarial deed while the auction procedure is in progress, and fails to complete such argument despite the fact that it could be prevented, but rather, if the notarial deed is satisfied on the premise that it is valid and the proceeds of the auction are distributed after the decision of approval of the auction, the person indicated as an executor as an executor is objectively granted to the successful bidder the trust that the notarial deed is valid, and thus, it is reasonable for the successful bidder to have such trust. Thus, it shall be deemed that the latter person's assertion that the compulsory auction is null and void on the ground that the notarial deed is null and void against the successful bidder is in violation of the Financial Advice and the good faith principle (see Supreme Court Decision 69Da1228 delivered on June 5, 1973).

According to the facts established by the court below in this case, the plaintiff did not assert that the execution certificate of this case, which is the title of debt, was null and void even after the above auction procedure had commenced, even though the above auction procedure had been in progress. However, the plaintiff asserted that the registration of establishment of a mortgage in the real estate auction procedure, which was in progress with the above procedure, was the invalidation of the cause, and that the registration of establishment of a mortgage in the real estate auction procedure, which was in overlap with the above procedure, was the only claim that the registration of establishment of a mortgage was null and void. In addition, when a reappeal was filed and the decision of approval of auction became final and conclusive after dismissal of the reappeal, the plaintiff received the dividends of the successful bid price, and barring any special circumstances, the plaintiff cited that the execution certificate of this case was null and void, and asserted that the compulsory auction procedure

However, according to the evidence admitted by the court below, even though the plaintiff filed a lawsuit against the non-party 1 on July 198 seeking confirmation of nullity of the enforcement certificate of this case, the plaintiff may be acknowledged as having received the payment of the remainder of the successful bid price at around March 10, 1989, and there is no evidence to prove that the plaintiff asserted the invalidity of the enforcement certificate of this case against the non-party 1 on June 21, 1988, which was not rejected by the court below, prior to the filing of the lawsuit, the plaintiff raised an objection against the amount distributed to the non-party 17,625,738, which was distributed to the non-party 1,625,738, which was distributed to him on the date of distribution of the above real estate on June 21, 1988, and the fact that the plaintiff received the payment of the remaining successful bid price at around March 10, 199.

However, according to the records, considering the contents of Paragraph (3) of the preparatory document dated October 18, 1989 as stated by the defendant's legal representative on the date of the first instance trial and Paragraph 3 (3) of the preparatory document dated October 13, 1990 stated on the date of the seventh hearing before remanding the case, the defendant cannot be deemed to have asserted that the exercise of the plaintiff's right of this case is contrary to the opinion and the principle of good faith. Thus, even though the court below should have deliberated and judged clearly this point, it shall not be deemed to have committed the violation of the law of failure to exhaust all necessary deliberation and the determination. The arguments pointing this out are with merit.

4. Therefore, without examining the remaining grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Man-man (Presiding Justice)