Measures by the appellate court where part of the auction real estate has been expropriated after the decision to permit the auction;

When part of the auction real estate is expropriated or destroyed or lost, it falls under the latter part of Article 633 subparag. 1 of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 190; hereinafter the same shall apply) and the proviso of Article 635(2) (proviso) of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 190; hereinafter the same) and where part of the auction real estate is expropriated or destroyed while the appeal case against the decision is pending after the decision of permission of auction was issued by the court of auction, the appellate court shall determine the propriety of the decision of permission of auction in consideration of the above reasons. Thus, with respect to the expropriated or destroyed part, the appellate court shall revoke ex officio the decision of permission of auction and reject the adjudication of auction, and where it is acknowledged that only the successful bidder can purchase the remaining part in light of the situation of the expropriated or destroyed part, etc.

Article 643(3) of the Civil Procedure Act; Article 635(2) and Article 633 subparag. 1 of the former Civil Procedure Act (amended by Act No. 4201, Jan. 13, 1990)

Appellant 1 et al.

Seoul Central District Court Order 92Ra254 dated February 25, 1993

The order of the court below is reversed and the case is remanded to Seoul Civil Procedure District Court Panel Division.

The grounds of reappeal are examined.

According to the reasoning of the order of the court below, the court below rejected the Re-Appellant's assertion that the decision of permission of the auction of this case should be revoked on the ground that part of the site and building among the auction real estate of this case was expropriated in Seoul Special Metropolitan City following the decision of permission of the auction of this case, and maintained the decision of permission of the auction of this case on the ground that the decision of permission of the auction of this case was not unlawful retroactively after the decision of permission of the auction of this case.

However, if part of the auction real estate is expropriated or destroyed or lost, it falls under the latter part of Article 633 subparag. 1 of the former Civil Procedure Act (amended by Act No. 4201 of Jan. 13, 190; hereinafter the same shall apply) and the proviso of Article 635(2) which applies to this case with respect to the expropriated or destroyed part of the auction real estate, "it is impossible to continue execution" and "it is not possible to transfer the auction real estate". In addition, where part of the auction real estate is expropriated or destroyed during the appeal case after the decision of permission of auction was issued by the auction court, the appellate court should determine the propriety of the decision of permission of auction considering the above reasons. Thus, with respect to the expropriated or destroyed part, the appellate court should cancel the decision of permission of auction ex officio and reject the decision of permission of auction, and if the successful bidder does not recognize only the remaining part of the auction in light of the situation of expropriation or destroyed part, etc.

According to the records in this case, the auction court of this case permitted the auction to the Re-Appellant 2 on April 13, 1992 with respect to the above Re-Appellant and the Re-Appellant 1, who is a mortgagee on the above real estate, to file an appeal against the decision of permission of auction of this case on July 11, 1992. The local Land Tribunal of Seoul Special Metropolitan City made an adjudication of expropriation of the specific portion of the above land 57.9 square meters and the above above ground buildings while the appeal is pending, and completed the registration of transfer of ownership in the future of Seoul Special Metropolitan City by dividing the expropriated portion of the land and setting a lot number of the ( Address 2 omitted). The above ground buildings were entirely removed by the competent authority on November 12 of the same year, and if it is true, the court below should not maintain the decision of permission of auction of this case in accordance with the above legal principles.

Nevertheless, the judgment of the court below as above is erroneous in the misunderstanding of legal principles as to the standard time of determining the grounds for appeal in the real estate auction case, which affected the decision. Therefore, the ground for appeal pointing this out has merit.

Therefore, the decision of the court below is omitted and the decision of the court below is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)