Where it is unclear that there is a report of lien between the date of decision on sale and the date of decision on sale after the fact that there is no lien with the knowledge that there is no lien in the real estate auction procedure, and it is not clear that there is no room for the lien to be established.

Articles 121 subparag. 6 and 123 of the Civil Execution Act; Article 320(1) of the Civil Act

[Plaintiff-Appellant] 2005Ma643 decided August 8, 2005 (Gong2005Ha, 1546)

【Re-Appellants】

Boan Mutual Savings Bank, Inc.

Seoul Western District Court Order 2006Ra91 dated December 15, 2006

The order of the court below is reversed, and the case is remanded to the Seoul Western District Court.

The grounds of reappeal are examined.

In a case where it is not clear that there is a report of a lien between the date of sale decision after the request for purchase with the knowledge that the bidder has no lien on the relevant real estate, and even if the highest bidder has already been designated as the highest bidder, it is not clear that there is no room for the establishment of the lien between the date of sale decision thereafter, and that there is no room for the establishment of the lien. In a case where it is reasonable that the execution court has made a decision not to permit the sale by interested parties' objection or ex officio because there is a significant increase in the burden of the right on the real estate sold to which the bidder will take over by the future, and that there is an objection as provided in subparagraph 6 of Article 121 of the Civil Execution Act.

In light of the above legal principles, when the re-appellant reported the right of retention in the real estate auction procedure of this case after the date of sale decision and claimed the cause of such right of retention before the date of sale decision, it entered into a contract for the construction of 12 households for multi-household housing in this case by the debtor to the re-appellant, and four households among 12 households are directly sold by the debtor, while the remaining eight households are divided into the sub-appellant and were divided into the sale price of the multi-household housing in this case into the construction cost after completion of the multi-household housing, but the sub-appellant's assertion that the multi-household housing in this case is currently occupied after delivery of the two households in this case from the Seocho industry as collateral, if the sub-appellant, the subcontractor, at least acquires and exercise the independent right of retention for his claim for the construction cost, or exercise the right of retention for the contractor industry, and there is no room to deem that the execution court's sale decision can be established until the date of sale decision as an interested party.

Nevertheless, the court below revoked the first instance court's decision that the Re-Appellant could not acquire lien on two households of multi-household houses of this case on the ground that the completed portion of the pel structure of this case and multi-household houses of this case are different objects in terms of social norms. Thus, the court below erred by misapprehending the legal principles on the establishment of lien, etc., which affected the conclusion of the judgment.

Therefore, the order of the court below is reversed, and 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 on the bench.

Justices Ahn Dai-hee (Presiding Justice)