In a case where an execution officer has conducted an additional tender without going through a procedure of disclosing his name and price and notifying the termination of the auction even though the highest bidder had been the highest bidder, whether the refusal of the adjudication by official authority under Article 635(2) of the Civil Procedure Act constitutes a ground for refusal of the adjudication (affirmative)

According to the provisions of Article 627 of the Civil Procedure Act, if there is a highest bidder at the bidding date, an execution officer shall create his name and price, and notify the termination of auction on the bidding date. If an execution officer conducts an additional tender under Article 665 of the same Act without going through a procedure to protect his name and price and to notify the termination of auction despite being the highest bidder on the bidding date, if the execution officer conducts an additional tender under Article 665 of the same Act, the series of procedures are in violation of Article 627 of the same Act, and even if the highest bidder has become the highest bidder in the additional tender, such a case constitutes "when the highest bidder violates Article 633 (7) of the same Act" under the main sentence of Article 635 (2) of the same Act, and thus, the adjudication of auction ex officio is dismissed

Articles 627, 633 subparag. 7, 635(2), and 665(2) of the Civil Procedure Act

Re-appellant

Incheon District Court Order 99Ra2341 dated January 6, 2000

The reappeal is dismissed.

We examine the grounds for reappeal.

According to the records, at the second bidding date in the Incheon District Court 99Hu14749, the Re-appellant reported the bid price of KRW 1,105,00,000,000 for the second bidding date in the real estate auction case. The non-applicant reported the bid price of KRW 1,100,50,000 for the non-applicant Samsung Metal Co., Ltd., and the execution officer again reported the re-appellant's bid price of KRW 1,155,00,00 for the non-applicant's bid price. The non-applicant reported the bid price of KRW 1,128,70,000 for the non-applicant's bid price. The execution officer notified the Re-Appellant's name and bid price as the highest bidder and notified the termination of the bidding procedure. The auction court decided not to permit the bid price for the real estate of this case on the ground that the execution officer cannot be deemed to lawfully set the name and the price of the highest bidder and dismissed the appeal by the court of auction.

According to the provisions of Article 627 of the Civil Procedure Act, if there is a highest bidder at the bidding date, an execution officer shall create his name and price, and notify the termination of the auction in accordance with the provisions of Article 627 of the same Act. If an execution officer conducts an additional tender as provided in Article 665 of the same Act without any procedure for disclosing his name and price and notifying the termination of the auction in spite of being the highest bidder at the second bidding date of this case, if the execution officer conducts the additional tender as provided in Article 665 of the same Act, the series of procedures are in violation of the provisions of Article 627 of the same Act. Even if the highest bidder has become the highest bidder at the additional tender, such a case constitutes "when the highest bidder violates the provisions of Article 633 subparagraph 7 of the same Act" under the provisions of Article 635 (2) of the same

The judgment of the court below that there was no error of law in the decision of the auction court which rejected the successful bid of the re-appellant in the above legal principles is just, and although the court below ruled that the re-appellant did not submit the reason for appeal despite the re-appellant's submission of the reason for appeal, as pointed out in the grounds for reappeal, unless it does not permit the successful bid of the re-appellant, such error does not affect the conclusion of the judgment, and thus, it cannot be accepted.

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

Justices Yoon Jae-sik (Presiding Justice)