Whether the owner of real estate is entitled to receive a successful bid in the discretionary auction procedure;

In the procedure of voluntary auction, the owner is not responsible for the personal responsibility for the bonds which are the basis of the auction as a surety, but is in accordance with the real estate of auction, so if the above physical responsibility is legally removed, the applicant for the purchase can be the simple and reliable method, so the owner cannot be the highest bidder in the procedure of voluntary auction.

Article 633 subparag. 2 of the Civil Procedure Act

New Uniforms

Seoul Posi District Court Decision 93Ma1348 delivered on December 8, 1993

The original decision shall be revoked.

The award of this case shall be permitted.

According to the records, the appellant reported the bid price of KRW 107,479,99 on the date of the auction of this case, but the court of original judgment did not permit the bid of this case pursuant to Article 635 and Article 633 subparagraph 2 of the Civil Procedure Act on the ground that the appellant is identical to the debtor's status in the procedure for compulsory auction of this case as the owner of the auction of this case for the exercise of security right.

On the other hand, Article 633 subparagraph 2 of the Civil Procedure Act provides that "when the highest bidder has no capacity or capacity to purchase the real estate," and Article 635 provides that "when there are reasons provided for in Article 633, the successful bid shall not be granted ex officio." However, "when there are reasons provided for in Article 633, the person has no capacity or capacity to purchase the real estate under Article 633 subparagraph 2 above," it refers to the legal capacity or capacity or the economic ability to purchase the auction real estate. In the voluntary auction procedure, the owner is not responsible for the real estate, which is the basis of the auction as a surety, but is in accordance with the material responsibility for the auction real estate, so it can be simple and clear way to legally remove the above physical liability, so the highest bidder cannot be the bidder in the voluntary auction procedure, and if it is not subject to the same status as the debtor in the process of compulsory auction, if it is not possible to distinguish the owner from the owner who actually is equivalent to the debtor and the owner who actually assumes personal responsibility from the owner.

Thus, the order of the court below that did not permit the successful bid for the subject matter of the auction of this case is unlawful and thus it is decided as per the disposition by cancelling the successful bid of this case.

Judges Oral (Presiding Judge) or Park Jung-hwa