[1] Whether co-owners can exercise the preferential right to purchase the entire real estate subject to sale (negative with qualification) in cases where the court of execution decides to sell several real estate en bloc, whether the co-owners can exercise the preferential right to purchase the real estate (negative with qualification)

[2] The case holding that an immediate appeal may not be filed against the decision of permission for sale under Article 129 (1) of the Civil Execution Act since the report of preferential purchase by the bidder itself is unlawful

[1] Where a court of execution decides to collectively sell several real estate, as long as the court of execution maintains the decision to collectively sell the real estate, it is reasonable to view that the co-owners of part of the real estate subject to sale may not exercise the preferential purchase right of the co-owners for the whole real estate subject to

[2] The case holding that an immediate appeal against the decision of permission for sale under Article 129 (1) of the Civil Execution Act cannot be filed since the bidder's preferential purchase declaration itself is illegal

[1] Article 140 of the Civil Execution Act / [2] Article 129 (1) of the Civil Execution Act

[Plaintiff-Appellant] Hanyang et al. (Law Firm Hanyang and five others, Counsel for plaintiff-appellant)

Busan District Court Order 2005Ra281 dated October 10, 2005

The reappeal is dismissed.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the deadline for re-appeal).

1. As to the assertion of misapprehension of legal principles as to the preferential right of co-owners

Article 140 of the Civil Execution Act provides that co-owners shall hold consultations with other co-owners in using and managing all co-owners in order to use and manage the jointly-owned property, and maintain a personal relationship with other co-owners, the legislative purport is to grant a new person priority to the existing co-owners in the sale of co-owners, rather than to become co-owners, and give them an opportunity to purchase their co-ownership shares. However, it does not mean that co-owners want to purchase at the same price as the highest bidder and allow them to purchase their co-owners, and it is not reasonable to recognize that there is no more special reason to treat all the co-owners as co-owners with superior to the other co-owners. Since the co-owners' preferential purchase right system is premised on the sacrifice of other bidders, it is necessary to manage the whole co-owners' preferential purchase right as much as possible in consideration of its legislative purport, and if it is possible to determine whether to sell all the real property as a lump sum sale right separately among the co-owners' several different co-owners to use it.

Examining these legal principles in light of the records, since the court of execution that made a decision to sell all real estate of this case is justifiable, the re-appellant who is a co-owner of part of the real estate subject to sale, as long as the decision to sell all real estate is maintained as is, cannot exercise the co-owner's preferential right to purchase all of the real estate subject to sale. Although the reasoning of the court below is inappropriate, the court below is justified in rejecting the re-appellant's preferential right to purchase. The court below did not err by misapprehending the legal principles

On the other hand, as acknowledged by the record, the court of execution notified the re-appellant that the court of execution can make a preferential purchase of the debtor's share under Article 140 of the Civil Execution Act (not notifying the re-appellant of the preferential purchase declaration for the entire real estate of this case). The Re-Appellant also notified the date of sale and the date of decision of sale, it is difficult to say that the Re-Appellant provided the Re-Appellant with the trust that the co-owner may exercise the preferential purchase right for the entire real estate subject to collective sale of this case, and otherwise, it cannot be said that there was a serious error such as depriving

Therefore, this part of the grounds for reappeal is without merit.

2. As to the assertion of violation of statutes and precedents

An interested party may file an immediate appeal against the decision of permission for sale only when referring to damages according to the decision of permission for sale (Article 129(1) of the Civil Execution Act), and an appeal against the decision of permission for sale is not based on the rights of other interested parties (Articles 122 and 131(3) of the Civil Execution Act). Thus, an interested party may file an immediate appeal against the decision of permission for sale only when he/she suffers damages. Meanwhile, an appeal may be filed against the decision of permission for sale only when he/she claims that he/she is a lawful highest bidder and claims that his/her permission for sale be different (Article 129(2) of the Civil Execution Act).

In this case, the re-appellant asserts that he should obtain permission for sale as highest bidder on the premise that his preferential purchase declaration is lawful. As seen earlier, the re-appellant's preferential purchase declaration itself is unlawful, and therefore, the re-appellant cannot be said to receive any damage by the decision of permission for sale in this case, and therefore, an immediate appeal against the decision of permission for sale in Article 129 (1) of the Civil Execution Act cannot be

In addition, even though an obligor, after the decision of permission for sale, lost ownership over a part of the real estate subject to sale in the public auction procedure, a person claiming the highest bidder himself/herself as a lawful highest bidder cannot claim as a ground for an immediate appeal or reappeal against the decision of permission for sale with the ground for loss of ownership under Article 129(2) of the Civil Execution Act, unless he/she claims to permit sale to himself/herself under Article 129(2) of the same Act. The Supreme Court Order 84MaKa31 dated February 8, 1985 cited in the ground for reappeal is different from this case, and thus it is inappropriate to invoke this case. Accordingly, this part of the ground for reappeal is groundless

3. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)