[1] In a case where a factory mortgage is held by a mortgagee other than the mortgagee of the right to collateral security other than the mortgagee of the right to collateral security, which is the object of auction, whether the public property of the factory installed on the real

[2] Whether "after 7 days from the date of public notice" under Article 631 (2) of the former Civil Procedure Act includes seven days from the date of public notice (affirmative)

[3] Whether a wage creditor who demanded a distribution constitutes an interested party under Article 607 of the former Civil Procedure Act (negative)

[1] According to Articles 4, 5, and 7(1) of the Factory Mortgage Act, land or building which is the object of factory mortgage and machinery, apparatus, etc. installed therein cannot be sold by installments. Thus, if there is a factory mortgage of a mortgagee other than the mortgagee on the real estate, an auction court shall also hold the auction en bloc, such as machinery, apparatus, etc. which is the object of factory mortgage of the mortgagee on the real estate.

[2] Article 631 (2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that the new auction date shall be set at seven days after the date of public notice. Here, the new auction date shall include seven days after the date of public notice.

[3] The court shall notify the interested parties of the auction date and the auction date. The interested parties here refer to the execution creditor and the creditor, debtor and owner demanding distribution by means of executory exemplification, the right holder on the real estate stated in the register, the right holder on the real estate, and the right holder on the real estate. Even if they are those having de facto interest in the auction procedure, if they are not listed in the provisions of the same Article, they cannot be considered as interested parties in the auction procedure. Thus, the wage creditor who demanded distribution cannot be deemed as interested parties referred to in the above provisions.

[1] Articles 4, 5, and 7(1) of the Factory Mortgage Act / [2] Article 631(2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [3] Article 607 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 90 of the Civil Execution Act), Article 617(2) (see current Article 104(2) of the Civil Execution Act)

[1] Supreme Court Order 79Ma935 dated February 19, 1971 (No. 19-1, 80) 79Ma348 dated December 17, 1979 (Gong1980, 12416), Supreme Court Order 84Ma718 dated March 14, 1985 (Gong1985, 708), Supreme Court Order 92Ma576 dated August 29, 1992 (Gong192, 2838) / [2] Supreme Court Order 79Ma79 dated March 20, 197 (Gong1979, 11895) / [3] Supreme Court Order 79Ma79 decided May 13, 1968 (Gong1979, 2947Ma19759 decided May 13, 197; 197Ma197475 decided May 16, 1975)

Appellant (Law Firm Il, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Daejeon District Court Order 200Ra731 dated January 10, 2001

The reappeal is dismissed.

The grounds of reappeal are examined.

1. On the first ground for appeal

According to Articles 4, 5, and 7(1) of the Factory Mortgage Act, land or building which is the object of factory mortgage and machinery, apparatus, etc. installed therein cannot be sold by installments. Thus, in case where there is a factory mortgage of a mortgagee other than the mortgagee of the right to collateral security except the mortgagee of the right to collateral security, an auction court shall also hold the auction en bloc with the machinery, apparatus, etc. which is the object of factory mortgage of the mortgagee of the right to collateral security (see Supreme Court Order 92Ma576 delivered on August 29, 192).

In the same purport, the court below's decision that the auction court was justified by including the machinery and equipment of the National Livestock Cooperatives Federation, which is the subordinate mortgagee of the debtor's subordinated mortgage in the subject of the bid in this case, is consistent with the above legal principles, and there is no error of law such as misunderstanding of legal principles as to factory mortgage as otherwise alleged in the grounds for reappeal.

2. On the second ground for appeal

Article 631(2) of the former Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002; hereinafter the same) provides that the new auction date shall be set at seven days after the date of public notice. Here, the date after seven days shall include the date falling under seven days (see Supreme Court Order 79Ma79, Mar. 20, 1979).

In the same purport, the court below held that the fourth bidding date of this case was no error in the designation of the bidding date by the auction court since it was September 18, 2000, which was 7 days after September 11, 2000, the expiration date of the bidding notice period, and there is no error in the misapprehension of the legal principles as to the designation of bidding date.

3. On the third ground for appeal

The court shall notify the interested parties of the auction date and the auction date (Article 617(2) of the former Civil Procedure Act). The interested parties here refer to the execution creditor, the debtor and the owner of the real estate, the right holder of the real estate recorded in the register, the right holder of the real estate, and the person who proves such right as the above right holder of the real estate (Article 607 of the former Civil Procedure Act). Even though those who have de facto interest in the auction procedure are not listed in the provisions of the same Article, if they are not those listed in the auction procedure, they cannot be deemed to be interested parties in the auction procedure (see Supreme Court Decision 98Da53240 delivered on April 9, 199), and it is evident that the wage creditor who demanded a distribution cannot be deemed to be interested parties referred to in the above provisions.

In the same purport, the court below determined that the re-appellant, who was a wage obligee after the decision on commencing the auction of this case, did not fall under any item of the above interested parties, and thus, the auction court's decision to permit the successful bid of this case cannot be deemed unlawful on the ground that the auction court conducted the bidding procedure without notifying the bidding date to the re-appellant, is in accordance with the above legal principles, and there is no error of law as to the notification

4. On the fourth ground for appeal

In case where a creditor who has the right to preferential reimbursement under the Civil Act, Commercial Act or other Acts and subordinate statutes, a creditor who has an executory exemplification, and a creditor who has made a provisional seizure after the registration of a request for auction after the registration of a request for auction, makes a demand for a distribution by the auction date, the interested parties shall be notified of this fact. However, according to Articles 728, 643 and 634 of the former Civil Procedure Act, no appeal against the decision of permission for auction on the ground of the right of other interested parties is allowed. Thus, even if the auction court did not notify the interested parties of the demand for distribution, it cannot be asserted as a ground for appeal by the re-appellant who is not an interested party to receive the notification. Thus, this part of the ground for reappeal cannot be accepted.

5. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)