Where a person having a right to lease on a deposit basis, whose duration has expired prior to the successful bid date, makes a demand for distribution in the auction procedure, whether the right to lease on a deposit basis is extinguished by the successful bid (affirmative with qualification)

Even if the right to lease on a deposit basis is not included in Article 608(2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), if the duration expires before the successful bid date, the person having chonsegwon can lawfully demand a distribution. As such, if such a demand for distribution is made, the court of execution shall suspend the auction procedure scheduled for the right to lease on a deposit basis to be taken over to the successful bidder, and shall proceed with the auction procedure by reflecting the situation where the right to lease on a deposit basis is extinguished due to the successful bid, such as adding the deposit to the bid price, etc., and if the auction is conducted without taking such measures, the right to lease on a deposit basis shall be extinguished due to successful bid. If the auction procedure is conducted without

Article 608 (2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (Article 91 of the current Civil Execution Act)

Supreme Court Decision 2001Da72104 Delivered on January 25, 2002

Plaintiff (Counterclaim Defendant) (Law Firm Squa, Attorneys Park Woo-dong et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Attorney Jeon Young-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na3430, 34347 delivered on November 8, 2002

The counterclaim part of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Object of the trial;

The purport of the appeal stated in the petition of appeal of this case is that "the original judgment is reversed, and the case is remanded to Seoul High Court." However, in light of the first copy of the petition of appeal stating that "I would raise an appeal as to the dismissal of the counterclaim by Appellant (Defendant, Counterclaim Plaintiff)" and that the stamp attached to the petition of appeal is calculated only as to the counterclaim claim, the object of the appeal of this case is limited to the counterclaim claim, and thus, the Supreme Court is only the object of the judgment of the defendant's counterclaim claim.

2. The judgment of the court below

Based on its adopted evidence, the court below declared that on July 3, 1998 with respect to each real estate listed in the separate list of the judgment below (hereinafter referred to as the "real estate in this case"), the establishment of chonsegwon was registered with the Defendant (Counterclaim Plaintiff; hereinafter referred to as the "Defendant") having chonsegwon on July 26, 200, the period of existence and return, and on July 3, 200, (200, 80,000, 301 and 401, respectively, were cancelled on July 24, 1998; and that the bid price was 650,000,000,000,000 won on December 24, 1998; and that on October 26, 1999, the court of the judgment of the court below recognized the plaintiff's voluntary auction on the same real estate in this case's auction procedure as the plaintiff's auction on the same real estate in this case's order of sale on the same date.

In addition, the court below rejected the defendant's claim for counter-claim based on the premise that the period of chonsegwon is not expired within six months after the date of the registration of the decision on commencement of auction after the lapse of six months from the date of the registration of the decision on commencement of auction, at least when a person having a right to lease on a deposit basis has made a demand for distribution, and that the person having a right to lease on a deposit basis has the right to receive a preferential repayment from the successful bid price, as well as the mortgage, and that the person having a right to lease on a deposit basis has the right to receive a preferential payment from the successful bid price. However, although the period of chonsegwon of the defendant's right to lease on a deposit basis has not expired within six months from the date of the registration of the decision on permission of successful bid for the real estate in this case, the period of the decision on permission of successful bid was expired on April 16, 200, which is the date of the decision on permission of successful bid, and the defendant demanded the repayment of the successful bid price as a final and conclusive decision on September 3, 2001.

3. Judgment of the Supreme Court

The above judgment of the court below is hard to accept for the following reasons.

Even if it is not included in Article 608(2) of the former Civil Procedure Act (amended by Act No. 6627 of Jan. 26, 2002 and enforced from July 1, 2002, the enforcement protocol was repealed due to the Civil Execution Act), a person having chonsegwon can lawfully demand a distribution when the duration expires prior to the successful bid date. As such, if a demand for distribution is made, the court of execution shall suspend the auction procedure that is scheduled to be taken over to the successful bidder, and shall proceed with the auction procedure by reflecting the circumstances that disappear due to successful bid such as suspending the auction procedure that the person having chonsegwon will take over the successful bidder, including adding the deposit money to the bid price, etc. (see Supreme Court Decision 2001Da72104, Jan. 25, 2002). If an auction is conducted without such a measure, the right to lease on a deposit basis shall be deemed to have been taken over to the successful bidder regardless of the expiration of the duration.

However, according to the records of this case, the auction court conducted an auction on the bidding date on the premise that the original defendant's right to lease on a deposit basis was acquired as the successful bidder in this case, and reported the purchase at the highest price on the bidding date. After which the defendant made a demand for distribution as a person having a right to lease on a deposit basis, it can be known that the court sentenced the plaintiff who made the purchase report by bidding at the highest price and made the successful bid decision to permit the successful bid. Accordingly, according to the above legal principles, the defendant's right to lease

Nevertheless, the court below held that the right to lease on a deposit basis as the successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder's successful bidder'

4. Conclusion

Therefore, the part of the judgment of the court below regarding the counterclaim is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Byun Jae-chul (Presiding Justice)