Whether grounds for objection to the order to deliver real estate and whether the inherent procedural defect in the real estate auction procedure can be grounds for objection to the order to deliver real estate (negative)

Subparagraph 1 of Article 56, Article 136 (1) and (5) of the Civil Execution Act

Applicant

Respondent 1 and one other

Chuncheon District Court Order 2014Ra13 dated November 28, 2014

The order of the court below shall be reversed, and the case shall be remanded to the Gangnam Branch Branch Court Panel Division of the Chuncheon District Court.

The grounds of reappeal are examined.

1. The record reveals the following facts.

A. In the instant voluntary auction procedure, the applicant: (a) sold each real estate listed in paragraphs 1 through 4 of the attached Table 1 of the original judgment (hereinafter “each of the instant real estate”) owned by the respondent; (b) paid the price in full; and (c) acquired the ownership of each of the instant real estate on September 30, 2013.

B. The applicant filed an application for the extradition order against the respondent on January 13, 2014, and the first instance court rendered a decision on January 17, 2014 on the extradition order of this case.

C. On January 28, 2014, the respondent filed an immediate appeal with the following grounds.

① When borrowing KRW 47 million from the applicant, the respondent was to arrange all obligations, such as collateral security obligations, provisional seizure obligations, etc. established on each real estate listed in the separate sheet of the original judgment, including each real estate of this case, with the above money, but the applicant applied for voluntary auction on the real estate listed in the separate sheet of the original judgment by Nonparty 1 and Nonparty 2 as the applicant did not repay the collateral security obligations of Nonparty 1 and Nonparty 2 and the applicant applied for voluntary auction on the real estate listed in the separate sheet of the original judgment.

② Accordingly, the respondent has the right to claim damages against the applicant, and the application of the extradition order constitutes a violation of the good faith principle or an abuse of rights.

D. On this issue, the lower court, apart from what is indicated in the separate list of the lower court’s judgment, established a collective security right with the maximum debt amount as KRW 650 million on each of the instant real estate owned by the respondent, (1) held that: (a) on April 26, 201, the applicant was undergoing voluntary auction procedure; (b) on the loan to the respondent 47 million won; (c) on the loan to the Respondent, the Respondent agreed to dispose of all the obligations, such as the collective security and provisional seizure, set forth in the separate list of the lower court’s judgment; (d) the Respondent agreed to dispose of the said real estate and repay the above loan and interest; (c) the Respondent set up a collective security right with the maximum debt amount as KRW 650 million on each of the instant real estate in order to secure the above loan amount; and (d) the Claimant did not accept the request for voluntary auction order with the Respondent’s view that the Claimant did not request for delivery of each of the instant real estate in the status of the Respondent’s claim for auction.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. An order to deliver real estate is a judgment ordering a debtor, owner, or possessor of real estate to deliver real estate to a buyer upon the request of a buyer who has paid the price in the real estate auction procedure, and is granted an execution title without res judicata so that the buyer may receive the real estate through a simplified and prompt procedure (Articles 136(1) and (5), and 56 subparag. 1 of the Civil Execution Act). The grounds for objection to an order to deliver real estate are limited to the defects of procedural requirements, which are the premise for the issuance of the order to deliver the real estate, defects of the procedures for the order to deliver the order, defects of the procedures for the examination in the form of the order to deliver the real estate, and the existence of possessory right that the other party to the order to deliver the real estate can refuse the delivery to the buyer.

Therefore, it is clear that the respondent's assertion that the respondent did not perform part of the lending agreement against the respondent, that is, the respondent's claim that the respondent is entitled to refuse to deliver each real estate of this case, and thus the respondent's claim that the respondent is entitled to claim damages, cannot be a ground for objection to the extradition order. On this premise, it is reasonable to deem that the violation of the principle of trust and good faith or the assertion of abuse of rights cannot be a ground for

B. For the purpose of allowing the exercise of right as an abuse of right against the principle of good faith, subjectively, the purpose of the exercise of right is to inflict pain on the other party, and there should be no benefit to the other party, and objectively, the exercise of the right should be deemed to be contrary to social order. Unless it does not fall under such case, even if the other party’s loss is considerably high than the benefit the exercise of the right may not be an abuse of right. The mere reason is that it does not constitute an abuse of right, and the exclusion of the operation of specific systems under the law from the application of the general principle above is likely to undermine legal stability, which is a single principle, in legal interpretation (see, e.g., Supreme Court Decisions 2007Da5397, Sept. 25, 2008; 201Da95847, May 29, 2014).

(6) On April 6, 2011, 1 and 3 other than the Respondents (hereinafter referred to as "the Respondents, etc.") have borrowed 470 million won from the Respondents to settle all obligations related to the right to collateral security, provisional seizure, etc. set out in the separate sheet owned by the Respondents, etc. and set the due date on August 30, 201 to secure the above Respondents, and the Respondents, etc. have transferred the ownership of the above Respondents and the Respondents may file an application for voluntary auction of 10,000 won with the Respondents, and 20,000 won have been set forth in the separate sheet No. 1 to 30,000 won, and 10,000 won have been set forth on April 26, 2011.

Examining the above circumstances in light of the legal principles as seen earlier, even if considering the circumstances that the applicant did not lend part of the loans to the respondent, etc., the applicant who acquired the ownership after being awarded a successful bid in the court's real estate auction procedure is merely seeking to inflict pain on the respondent and inflict losses on the respondent who was the owner of each of the instant real estate in accordance with Article 136 (1) of the Civil Execution Act, and there is no benefit to the applicant, and it is difficult to recognize that the applicant's application for the extradition order of this case is contrary to the

C. Nevertheless, the court below held that the application for the extradition order of this case by the applicant cannot be permitted as abuse of rights against the principle of good faith. Such judgment below erred by misapprehending the legal principles on the order of delivery of real estate and the principle of good faith and abuse of rights, which affected the judgment. The ground for reappeal pointing this out has merit.

3. 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 Jo Hee-de (Presiding Justice)