Whether the “auction for the division of co-owned property” under Article 269 of the Civil Act is a statutory sale condition to extinguish the burden on the real property subject to the statutory sale (affirmative in principle), and in a case where a purchaser takes over the burden, the measure taken by the executing court (=determination for change of sale condition and notification)

Article 608(2) of the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002) provides, “The right to lease on a deposit basis expires within six months after the registration under Article 611 shall be extinguished by auction.” In addition, Article 728 of the same Act provides, “The right to lease on a deposit basis shall apply mutatis mutandis to the auction procedure to enforce the security right, and the principle of extinguishment is the principle of compulsory auction and auction for exercising the security right. In a case of taking the principle of acceptance in an auction for partition of co-owned property, the former Civil Procedure Act does not provide for limiting the existence and content of the above subject real estate or the scope of the burden to be assumed, and it is difficult to view that the purchaser and the secured obligor or the surety are in very unstable status, and if there is a burden on part of the real estate for co-owned property, it is contrary to the so-called auction procedure or auction without taking into account the sale condition of the co-owned property as above.”

Article 269 of the Civil Act, Article 608(2) (see current Article 91(2), (3), and (4) of the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002), Article 623 (see current Article 111 of the Civil Execution Act), Article 728 (see current Article 268 of the Civil Execution Act), Article 734 (see current Article 274 of the Civil Execution Act) of the former Civil Procedure Act

Plaintiff (Attorney Park Im-hwan et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Shin Sung-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na81214 decided May 25, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Article 734(1) of the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002; hereinafter the same) provides that "an auction under a lien and an auction for realization under the provisions of the Civil Act, the Commercial Act, and other Acts shall be conducted in the same manner as an auction to exercise a security right." Thus, in an auction for partition of co-owned property conducted pursuant to Article 269 of the Civil Act, whether a purchaser acquires a complete ownership by extinguishing the burden on the subject real estate in an auction for partition of co-owned property pursuant to Article 269 of the Civil Act, or whether a purchaser shall take the so-called acquiring the burden on the subject real estate, or whether a purchaser takes the so-called acquiring the burden on the subject real estate, shall be determined by taking into account the purpose, purpose, and nature of the auction, the purport of the substantive law based on which the auction is based, the owner, creditor, and purchaser'

However, Article 608(2) of the former Civil Procedure Act provides, “The right to lease on a deposit basis, the period of which expires within six months after the registration of Article 611, shall be extinguished by a successful bid.” In addition, Article 728 provides, “The right to lease on a deposit basis, the period of which expires within six months after the registration of the right to collateral security,” and Article 728 provides, “The principle of extinguishment in compulsory auction and auction for the exercise of the right to collateral security.” In the case of taking the principle of acceptance in auction for partition of co-owned property, the former Civil Procedure Act does not provide for limiting the scope of the burden to investigate, determine, or accept the existence and content of the above subject real estate, and does not provide for the buyer to take over the obligation guaranteed by the above subject real estate, and if the sale price is distributed to co-owners at a different rate without considering such circumstances, it cannot be seen that the sale conditions overlap with the above auction procedure or auction for the purpose of co-owned property as well as the sale of co-owned property.

2. According to the reasoning of the judgment below, the real estate in this case was jointly owned by Nonparty 1, Co-Defendant 1 of the first instance trial, Co-Defendant 1 of the first instance trial, Co-Defendant 1 of the first instance trial, and co-Defendant 1 of the first instance trial, and co-Defendant 1's co-defendant 1's co-defendant 1's co-defendant 1's co-defendant 1's co-defendant 1's co-defendant 2's co-defendant 1's co-defendant 1's co-defendant 1's co-defendant 1's co-defendant 1's co-defendant 1's co-defendant 2's co-defendant 1's co-defendant 2's co-defendant 1's co-ownership of the real estate in this case's order and confirmed after the court's decision that "the proceeds of the real estate in this case are sold in proportion to co-ownership ratio

In light of the above legal principles, unless the purchaser of the above provisional seizure does not take the condition of special sale to take over the above provisional seizure in the above auction procedure, the defendant's share of the real estate of this case is extinguished by the successful bid of this case. Thus, the auction court did not err in requesting the registration of the above provisional seizure and the cancellation of the above provisional registration.

In the same purport, the court below is just in rejecting the plaintiff's claim against the defendant seeking consent to the procedure for recovery registration of provisional registration on the premise that the above provisional registration is not extinguished and should be accepted to the defendant, and there is no error in the misapprehension of legal principles as argued.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)