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 securitization on the ground of the assignment of claims during the auction in this case succeeded to the status of the parties) filed an application for voluntary auction on December 16, 2004 with the Daejeon District Court (Seoul District Court Decision 2004Mo24976, the court below decided to commence voluntary auction on December 16, 2004, based on the loan claims against the Samsung New Industries Co., Ltd. (the representative Kim Chang-chul, the hereinafter “Seoul New Industries”).

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 filed an application for exclusion from the bidding list with the purport that the factory building listed in the attached Table 2 No. 205Gadan134, which was issued a favorable judgment on March 11, 2005, should be excluded from the auction bidding list of this case (a factory building subject to removal of this case is part of the factory building as a factory building subject to removal; hereinafter “factory building subject to removal of this case”), but the court below rejected the above application and decided to sell the real estate and factory building of this case on December 5, 2005.

D. On February 3, 2006, the appellant filed an application for sales payment on the ground that the factory building subject to the removal of this case exists 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, which reported the purchase of the highest price (76,00,000 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 a guarantee or securities recognized by the court." According to Article 122 of the same Act, "any objection shall not be filed on the grounds of the rights of other interested parties." In full view of the purport of each of the above provisions, if there are at least two petitioners who file an immediate appeal against the decision of permission for sale, and if 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 is in the position of the carry-over vessel as the owner of the site of the factory of this case and applied for a non-sale permit, and each of the above appellant does not constitute a case where interests share the same interest. Thus, the 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. Thus, the appeal of this case is unlawful without need to review further.

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)