In case where the successful bidder concurrently holds the position of an interested party other than the debtor or owner in the auction procedure and files an appeal against the decision of permission for successful tender in the position of such interested party, whether the guarantee under Article 642 (4) of the Civil Procedure Act shall be provided

When a successful bidder files an appeal against a decision on permission for successful tender pursuant to Article 642 (4) which is applied mutatis mutandis pursuant to Article 663 (2) of the Civil Procedure Act, he/she shall deposit cash equivalent to 1/10 of the successful tender price or the securities recognized by the court as a guarantee. However, if the successful bidder concurrently holds the position of an interested party other than the debtor or owner in the auction procedure and files an appeal with the status of such interested party, such guarantee

Articles 642(4) and 663(2) of the Civil Procedure Act

Comprehensive Credit Cooperatives

Incheon District Court Order 98Ra765 dated November 11, 1998

The order of the court below shall be reversed, and the case shall be remanded to the Incheon District Court Panel Division.

The grounds of reappeal are examined.

When a successful bidder files an appeal against a decision on permission for successful tender pursuant to Article 642 (4) which is applied mutatis mutandis pursuant to Article 663 (2) of the Civil Procedure Act, he/she shall deposit cash equivalent to 1/10 of the successful tender price or securities recognized by the court as a guarantee. However, if the successful bidder concurrently holds the position of an interested party other than the debtor or owner in the auction procedure and files an appeal with the status of such interested party, such guarantee shall

The court below rejected the Re-Appellant's appeal on the ground that the Re-Appellant did not attach documents proving that the amount of cash equivalent to 1/10 of the successful bid price or the securities recognized by the court was deposited as security in the petition of appeal when filing an appeal against the bid price permission decision by the bid court even though the Re-Appellant was a successful bidder.

However, according to the records, the re-appellant is the best mortgagee who had already completed the registration of creation prior to the registration of commencement of auction for the auction object of this case, and the appeal of this case is also in the position of interested party. In such a case, according to the legal principles as seen earlier, it is unnecessary to attach documents proving that there has been a provision of guarantee under Article 642(4) of the Civil Procedure Act in filing an immediate appeal under the above legal principles. The order of the court below which rejected the appeal of this case is erroneous in the misapprehension of legal principles as to the provision of guarantee under Article 642(4) of the Civil Procedure Act, and it is reasonable to point out this point.

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 Lee Jae-soo (Presiding Justice)