[1] In a case where a housing lessee was not notified of the progress of the auction procedure for the leased object before filing a report on his/her right, whether it constitutes a ground for dissatisfaction with the decision on granting the successful bid (negative)

[2] Whether the omission of the date of tender and the notification of the date of tender to the interested parties constitutes "when it is impossible to continue the execution, which is the ground for an objection to the successful bid under Article 633 subparagraph 1 of the Civil Procedure Act" (affirmative)

[3] Whether delivery by registered mail without a receipt of a special postal item is lawful (negative)

[4] Whether it is unlawful for an interested party who reported a right to the date after the public notice of the bidding date, and the completion of the procedures for notifying other interested parties of the bid date and the bid date, to have failed to notify the relevant date (negative), and whether it is unlawful for a person who reported a right after the completion of the date to other interested parties, to have omitted the notification of the date first implemented after the report of the right to the right was made (negative)

[5] In a case where an interested party who was notified of the date in the tendering procedure voluntarily and participated in the tendering procedure, whether the omission of notification of the date to the interested party constitutes "when it is impossible to continue execution, which is the reason for the successful bid under Article 633 subparagraph 1 of the Civil Procedure Act" (negative)

[1] Even if a lessee meets the requirements for counterclaim under the Housing Lease Protection Act, he/she shall voluntarily prove his/her right and report it to the auction court until the decision to permit a successful bid is made, but shall be an interested party in the auction procedure. Notice to the lessee of the fact that the auction procedure is in progress pursuant to the Supreme Court's established rules is not a legal obligation, but a notification to the lessee of the fact that the leased object is in progress with respect to the party's convenience and that even the lessee or the lessee of the small-amount fixed-date may obtain a preferential repayment for the demand for distribution. Thus, even if the lessee was not notified of the fact that the auction procedure for the leased object was in progress before filing

[2] Article 633 subparag. 1 of the Civil Procedure Act provides that "when the execution cannot be continued," as one of the grounds for objection against the successful bid, and Article 617(2) of the same Act provides that the court shall notify the interested parties of the date of auction and the date of the successful bid. Thus, the compulsory execution cannot be lawfully continued without the notification of such date, and the omission of the notification of the date becomes the grounds for objection against the successful bid, and the same applies to a bid to which Article 663(2) of the same Act applies mutatis mutandis.

[3] The delivery by registered mail is conducted at the same time by a junior administrative officer, etc., who is an agency in charge of the service, and the service is conducted at the same time, so the service report shall be prepared by himself/herself, and the place, date, etc. of the service shall be specified in the prescribed form, and the receipt of special mail by a post office, the number of which is specified shall be attached thereto (see, e.g., Supreme Court Regulations No. 129, Nov. 18, 192; Supreme Court Rules No. 129, Dec. 18, 1992; Rules No. 2-75, etc. on Form of Documents Concerning Trial Affairs). Such service is important for the date and time of delivery to which the service takes effect at the time of delivery, and the certification of the date and time of delivery shall be based on the special receipt by the post office with a fixed date.

[4] Where a report on a right is made only after the date of tender and the procedure of notifying other interested parties of the date of tender is completed, it shall not be deemed unlawful on the ground that the interested parties did not notify the bidding date and the date of bid bid, even if the report was made before the bidding date. In addition, where the notice of the date of tender and the date of bid bid is given en bloc by designating several bidding dates, the person who reported the right should be separately notified of the date of report on the right after the completion of the several bidding dates. In such a case, if the procedure of notification of the date of multiple times to other interested parties has already been completed, it shall not be deemed unlawful even if the notification of the date was omitted for the first day which was

[5] In a case where an interested party was aware of his own knowledge and participated in the tender on the date and raised an objection against the successful tender if it reaches the successful tender date, the omission of the notice does not constitute a case where the execution cannot be continued, which is a ground for objection under Article 633 subparagraph 1 of the Civil Procedure Act, even if he was not notified of the bid date and the

[1] Articles 607 subparag. 4, 617(2), and 663(1) of the Civil Procedure Act / [2] Articles 617(2), 63 subparag. 1, and 663(2) of the Civil Procedure Act / [3] Articles 173, 174, and 617(2) and (3) of the Civil Procedure Act / [4] Articles 617(2), 633 subparag. 1, and 663(2) of the Civil Procedure Act / [5] Articles 617(2), 633 subparag. 1, and 663(2) of the Civil Procedure Act

[1] Supreme Court Order 9Ma3792 dated Aug. 26, 1999 (Gong199Ha, 2158) / [2/4/5] Supreme Court Order 99Ma5256 dated Nov. 15, 1999 (Gong2000Sang, 126) / [2] Supreme Court Order 95Ma320 dated Apr. 22, 1995 (Gong1995Sang, 1936) / [4] Supreme Court Order 95Ma1053 dated Dec. 5, 1995 (Gong196Sang, 322) / [4] Supreme Court Order 93Ma178 dated Mar. 4, 1993 (Gong193; 1993Sang, 1264) / [2] Supreme Court Order 95Ma19538 dated Mar. 26, 1998 (Gong19595Ma2595 decided Mar. 195958595.

Re-appellant

Seoul District Court Order 99Ra6255 dated October 21, 1999

The reappeal is dismissed.

The grounds of reappeal are examined.

1. Even if a lessee meets the requirements for counterclaim under the Housing Lease Protection Act, he/she shall voluntarily prove his/her right and report it to the auction court until the decision to permit a successful bid is made, and the notification to a housing lessee of the fact that the auction is in progress pursuant to the regulations of the Supreme Court is not a legal obligation, but a notification to the housing lessee of the fact that the auction is in progress for the leased object for the convenience of the parties, and the fact that even the lessee is entitled to preferential repayment for a demand for distribution by the small-sum lessee or the fixed-term lessee for the convenience of the parties (see, e.g., Supreme Court Order 9Ma3792, Aug. 26, 1999). Thus, even if the lessee was not notified of the fact that the auction is in progress for the leased object prior to reporting

Therefore, it cannot be accepted that the Re-Appellant’s decision to permit the successful bid of this case was unlawful on the ground that the Re-Appellant was not notified of the fact that the auction was conducted before reporting the right as

2. In the auction procedure for real estate, the auction court shall notify the interested parties of the date of auction and the date of auction (Article 617(2) of the Civil Procedure Act). This notification may be sent by registered mail to the address of interested parties (Articles 617(3) and 728 of the same Act). The method of delivery can be deemed to fall under the delivery by registered mail in the litigation procedure. Meanwhile, Article 633 subparag. 1 of the Civil Procedure Act provides that "when the enforcement cannot be continued," the court shall notify the interested parties of the date of auction and the date of auction. Thus, Article 617(2) of the same Act provides that the compulsory execution cannot be lawfully continued without notification of the date of auction and the date of auction shall not be a ground for objection against the auction unless there are any special reasons to the contrary. This provision shall also apply to the case of a bid to which Article 663(2) of the same Act shall apply mutatis mutandis (see, e.g., Supreme Court Order 205Ma30, Apr. 229, 195).

In addition, the delivery by registered mail is conducted at the same time by a junior administrative officer, etc., who is an agency in charge of the service, and the service is conducted by the service agency, so the service report shall be prepared by itself, and the place, date, etc. of the service shall be recorded in the prescribed form, and the receipt of special mail by a post office, the number of which is specified shall be attached (see, e.g., Supreme Court Regulation No. 129, Nov. 18, 192; Rule No. 2-75, Dec. 1, 1992; and Rule No. 2-75, etc. on Documents concerning Trial Affairs). Such service is important in relation to the delivery at the time of delivery, and the date and time of delivery shall be proved by the special mail receipt by a post office with a fixed date. Thus, it is reasonable to deem that the service by a report without the receipt of special mail as above

According to the reasoning of the order of the court below, the court below acknowledged that the re-appellant did not make any error in the notification of the date of the first instance court's bidding on September 7, 199, when the first instance court made a defect in the report of right and demand for distribution, and that the first instance court notified the re-appellant of the bidding date on the 8th day of the same month following that of the same month and the successful bid date on the 17th day of the same month in the manner under Article 617 (3) of the Civil Procedure Act, and that there was a peremptory bid on September 10, 199, which is the second bidding date.

However, according to the records, the service report and the document stating the name and the address of service of the re-appellant that chief clerk of the auction court of this case sent notice of the bid date and the bid date to the re-appellant to the service place by registered mail is attached to the records, but there is no receipt of special mail by the post office with the case number specified. Thus, the notice of the bid price and the bid date of this case to the re-appellant is illegal by the service report without the receipt of special mail as above and is invalid.

3. Meanwhile, in a case where a report on a right is filed only after the bidding date and the bidding date and the bidding date for other interested parties are completed, even if the report was made before the bidding date, it cannot be deemed unlawful on the ground that the interested parties did not notify the bidding date and the bid bid date (see Supreme Court Order 98Ma206, Mar. 12, 1998). In a case where a notice is given on the multiple bidding date and the bid date in a lump sum, the parties who filed the report on a right should be separately notified of the date after the completion of the several bidding dates. However, in such a case, if the several bidding date notification procedures for other interested parties have already been completed, it cannot be deemed unlawful even if the notice on the first trial date, which was implemented after the report on the right, was omitted (see Supreme Court Order 9Ma5256, Nov. 15, 199).

According to the records, the auction court notified interested parties of the date of the third bidding and the date of the successful bid of this case on July 29, 199, and the re-appellant reported the right immediately before the second bidding date after the date of the first bidding was impossible. The bid of this case was made on the second bidding date which was first enforced after the date of the report of the right. Thus, even if the re-appellant reported the right before the second bidding date, the second bidding date and the date of the successful bid were completed the notification procedure to other interested parties, so it cannot be deemed illegal on the ground that the re-appellant did not notify the date of the second bidding and the date of the successful bid to the other interested parties. Thus, it cannot be viewed as a ground for objection or appeal against the successful bid.

In addition, according to the records, the re-appellant is aware that the interested person was aware of himself and participated in the tender on the date and raised an objection against the successful tender on the date of successful tender. Thus, even if the re-appellant was not notified of the bid date and the date of successful tender, the omission of the notification does not constitute a case where the execution cannot continue, which is the ground for objection under Article 633 subparag. 1 of the Civil Procedure Act (see Supreme Court Order 95Ma1053, Dec. 5, 1995).

Therefore, the order of the court below is justified in finding that there was an error of law by misunderstanding the legal principles on delivery by registered mail, or by misunderstanding facts against the rules of evidence, but it is therefore justified in rejecting the appeal by the re-appellant. Therefore, the ground of reappeal cannot be accepted.

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

Lee Jin-hee (Presiding Justice)