New Asia Co., Ltd. and one other (Attorney Yoon Jae-sik, Counsel for the plaintiff-appellant)

Daejeon District Court Decision 2004Tagi24976 Decided February 7, 2006

The appeal of this case is dismissed.

1. Basic facts

According to the records, the following facts are recognized:

A. On December 15, 2004, the Industrial Bank of Korea (a limited company specialized in e-mail-backed securitization succeeds to the status of a party by the reason of the transfer of claims during the auction in this case) applied for a voluntary auction on December 16, 2004, based on a loan claim against the three-party maintenance industry, the real estate and factory buildings listed in attached Form 1 owned by the non-appeal 1 (hereinafter “the instant real estate and factory buildings”) in attached Form 1 owned by the non-appeal 1, and applied for a voluntary auction on December 16, 2004 at the Daejeon District Court Branch of the Daejeon District Court (2004ta24976), and the execution court rendered a voluntary decision to commence the auction on December 16, 2004.

B. In the auction procedure of this case, New Indones Industries Co., Ltd. (hereinafter “New Indones Industries”), the appellant, reported on the lease and demand for distribution of KRW 100 million on February 15, 2005. On March 10, 2005, the right of retention was reported on the claim for the construction price of KRW 130,670,000 on March 10, 2005.

C. On April 13, 2005, the appellant 2 filed an application for exclusion from the bidding list stating that the factory buildings listed in the attached Table 2 No. 2 shall be excluded in the bidding list of the instant auction on April 13, 2005 (a factory building subject to removal in the Daejeon District Court case No. 2005Gadan134, which was rendered a favorable judgment on March 11, 2005 against the third party, as the factory building subject to removal in the Daejeon District Court Decision No. 2005Gadan134, which was rendered a favorable judgment on March 11, 2005, but the court below rejected the above application and decided to sell the instant real estate and factory buildings en bloc on December 5, 2005.

D. On February 3, 2006, the appellant 2 filed an application for the refusal of sale on the ground that the factory building subject to the removal of this case existed on the land of the appellant adjacent to the real estate of this case. However, the court of execution continued the above auction procedure and decided to permit the sale of the real estate of this case and the factory building to 2 other than the appellant who reported the purchase of the highest price (76,000,000 won) on February 7, 2006.

E. On February 9, 2006, the appellant filed an appeal of this case. The appellant deposited 76,600,000 won under the joint name when filing an appeal of this case.

2. Summary of grounds for appeal;

The gist of the grounds for appeal of this case lies in the auction procedure of this case, such as the illegality of the appraiser's appraisal, the illegality of the execution officer's on-site confirmation method, the illegality of the order of preparation or sale of the sale specification, the illegality of preparation of the tender documentation, the illegality of the preparation of the tender documentation, the illegality of non-verification

3. Determination

Bain ex officio.

According to Article 130(3) of the Civil Execution Act, “any person who intends to file an appeal against the decision of permission for sale shall deposit money equivalent to 1/10 of the proceeds of sale with the guarantee or securities recognized by the court.” According to Article 122 of the same Act, “any objection shall not be filed on the ground of the rights of other interested parties.” In full view of the purport of each of the above provisions, in a case where there are not less than two petitioners who file an immediate appeal against the decision of permission for sale, and where there are no interested parties, it shall be deemed that each appellant should deposit money equivalent to 1/10 of the proceeds of sale or securities recognized by the court, respectively, in order to prevent delay in the procedure by filing an unfavorable appeal.

According to the facts acknowledged above, the appellant is in the position of the lessee or lien holder of the building for the purpose of auction of this case, and the appellant 2 is in the position of applying for a non-sale permit as part of the building for the purpose of auction of this case as the owner of the site for the factory of this case, and each appellant does not constitute a case where the interests are shared. Thus, each appellant of this case should deposit money equivalent to 1/10 of the purchase price or securities recognized by the court. However, in filing the appeal of this case, the appellant of this case deposited only the amount equivalent to 1/10 of the purchase price jointly, and thus, the appeal of this case is unlawful without any need to further examine it.

3. Conclusion

Therefore, the appeal of this case shall be dismissed, and it is so decided as per Disposition.

Judges Yoon-gu (Presiding Judge) (Presiding Judge)