[1] Whether Article 139 of the Civil Execution Act applies to the auction for the whole jointly owned property (negative)

[2] The case affirming the judgment of the court below which held that in case where the share of co-owners is included in the object of auction, it is not possible to exercise the preferential purchase right, the execution court's decision to permit the sale to the person who made the highest bidding on the date of sale in excess of the decision to refuse the sale, and that the above co-owners' immediate appeal against this decision should provide the guarantee equivalent to 1/10 of the sale price as an appeal

[1] Article 139 of the Civil Execution Act / [2] Articles 130, 139, and 140 of the Civil Execution Act

[Judgment of the court below]

Seoul Northern District Court Order 2008Ra50, 51 dated April 28, 2008

The reappeal is dismissed.

The grounds of reappeal are examined.

1. On the first and second points

Article 139 of the Civil Execution Act provides for the preferential bid right of all other co-owners in the event of an auction of the co-owners' shares of co-ownership, and there is no room for its application in the auction of the whole co-owners, and even if the shares of co-ownership are auction, the co-owners who have received a request for auction may not exercise the preferential bid right. Meanwhile, even if there is a highest bidding price in the case of a co-owners' preferential bid declaration under Article 140(1) of the Civil Execution Act, the court of execution shall permit the co-owners to sell even if there is a highest bidding price. Although there was a person who has made a highest bidding on the date of sale but the co-owners who have the preferential bid right but filed an application for a preferential purchase, the execution officer notified the co-owners who filed an application for a preferential purchase with the highest bidder on the date of sale as the next highest bidder. However, if it is found that the person who is the co-owners having the preferential bid right is not legally reported a preferential bid on the date of sale, the court shall not separately declare the sale decision.

After finding the facts as stated in its holding, the court below held that the court below's decision to permit the sale of Samung Telecom, the highest bidder who did not find the deposit at the date of sale, because the co-owner of a part of the object of auction of this case is not entitled to exercise the preferential purchase right as a co-owner of the object of auction of this case, and the share of the co-ownership is included in the object of auction of this case and cannot exercise the preferential purchase right. The court below held that the above decision of the court of execution should be basically a permit for sale, and therefore the above decision of the court of execution should be viewed as a guarantee equivalent to 1/10 of the sale price as a complaint against the decision to permit the sale of this case. In light of the above legal principles and records, the above decision of the court below is just

2. On the third ground for appeal

The order of the court below that the court of execution dismissed the appeal on the ground that the court of execution did not provide a guarantee to the re-appellant, even though it stated that the court of execution did not grant a permit for sale of Samdae Telecom through the order of permission for sale in this case and at the same time, it cannot be viewed as a separate rejection decision in light of the legal principles as seen earlier, so long as it cannot be viewed as a separate rejection decision in light of the above legal principles, it cannot be viewed as an appeal against the decision of refusal for sale in this case, or that the court of execution did not provide a trust to the re-appellant. Thus, the court below's decision that the re-appellant dismissed the appeal on the ground that the first instance court did not provide a guarantee to

3. Conclusion

Therefore, the reappeal is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)