The case holding that, where a successful tender is denied and the date of a tender is again proceeded due to a serious defect in the preparation of a specification of goods, all the bidding dates that continue to be defective in the preparation of a specification of goods are unlawful and thus, even if the minimum bid price was reduced on the bidding date, the auction court should proceed with the tender at the minimum bid price, not the minimum bid price illegally reduced, on the ground that the bid price was also unlawful.

The case holding that, where a successful tender is denied and the date of a tender is again proceeded due to a significant defect in the preparation of a specification of goods, all the bidding dates that continue to be defective in the preparation of a specification of goods are unlawful, and even if the minimum bid price has been reduced on the bidding date, the auction court should proceed with the tender at the minimum bid price, not the minimum bid price illegally reduced, on the ground that it is also illegal.

Articles 633 subparag. 6, 635(2), and 643(3) of the Civil Procedure Act

Re-appellant

Seoul District Court Order 99Ra4352 dated August 3, 1999

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

The grounds of reappeal are examined.

According to the records, in this case, the first highest bid price determined by the original auction court after an appraiser's appraisal was KRW 432,375,300, and the auction court had conducted the bidding date based on this, but the auction court has conducted the bidding date on two occasions, but the minimum bid price was reduced in order to reduce the minimum bid price, and the bidding price was 276,720,190 won on the third bidding date, which was 276,720,190 won, and the court of appeal granted the first successful bid price of KRW 303,00,000 from the person other than the applicant, and due to the second appeal by the re-appellant (Lessee), the court of appeal is aware of the fact that the highest mortgage date for the highest priority of the land and the building parts among the real estate in this case did not distinguish it from the specification of the goods, and thus rejected the successful bid

In addition, according to the records, the defects in the preparation of a specification, such as the judgment of the previous appellate court, continue to exist from the date of the third bidding after the date of the first bidding (Records 142, 158, 174). Thus, all the bidding dates that were conducted despite such defects are unlawful. Therefore, even if the minimum bidding price was reduced at the bidding date, this is also unlawful. Therefore, the auction court, which is proceeding again according to the decision of the previous appellate court, should proceed with the bidding at the lowest bidding price, not from the minimum bid price to be reduced illegally, with the original minimum bid price of KRW 432,375,300, not the minimum bid price to be reduced illegally.

Nevertheless, according to the records, the auction court did not reach it, and illegally reduced 276,720,190 won, which was decided and announced as the lowest bidding price again and proceeded with the fourth bidding date, and then permitted the successful bid of this case. Thus, the auction court constitutes a serious defect in the determination of the minimum auction price under Article 633 subparagraph 6 of the Civil Procedure Act, and thus, is illegal.

In addition, when there are such reasons, the appellate court should examine this issue ex officio without the filing of the grounds for appeal pursuant to Articles 643(3) and 635(2) of the Civil Procedure Act, and examine the propriety of the decision of the court of auction to grant the successful bid. However, the court below dismissed the appeal on the grounds that there is no submission of the grounds for appeal, and even after examining the record, it cannot find any illegal grounds for ex officio revocation. This is erroneous. The grounds for re-appealing this point are with merit.

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

Justices Seo-sung (Presiding Justice)