Appellant

Suwon District Court Decision 9Hu78317 delivered on August 31, 2004

The appeal of this case is dismissed.

1. Basic facts

According to the records, the following facts are recognized:

A. The non-applicant 1, the non-applicant 1, the non-applicant 1, the part of the building in the attached list 1, 2 (hereinafter referred to as "the part of each of the building in this case") in the Samwon-si building located in Gyeyang-gu, Samyang-gu (hereinafter referred to as the "the site in this case") from the non-applicant Won-si and the non-applicant 1 (hereinafter referred to as "the co-ownership share in the building in this case") was sold together with the site in full and paid the price for each of the building in this case. The non-applicant 1 completed the registration of ownership transfer on December 19, 196 with regard to each of the building in this case, but on the other, the right to claim the ownership transfer registration of the building in this case against the non-applicant 3, the non-applicant 1, the non-applicant 2's right to claim the ownership transfer registration of the land in this case was provisionally attached by the creditors of the Samwon-gu and the non-party 2, the non-party 1, could not complete the

B. On December 24, 1996 and January 31, 1997, when the non-applicant 1 did not have a registration as to shares in the site, the non-applicant 1 created a right to collateral security (hereinafter “the right to collateral security”) as to each of the respective parts of the building of this case to the Korea Mutual Saving and Finance Company (hereinafter “Korea Mutual Saving and Finance Company”) other than the applicant, Inc. (hereinafter “Korea Mutual Savings and Finance Company”) on two occasions on June 24, 1996 and on March 31, 1997, changed the trade name into the Orren Credit Finance and Finance Company (hereinafter “Korea Mutual Savings and Finance Company”) and was declared bankrupt on July 31, 2001; hereinafter “the right to collateral security”). The right to collateral security was established on August 23, 1999 upon the request of the credit cooperative outside the application.

C. When the portion of the building No. 1 of this case was 614,600,00 won, the share of the building site was 263,40,000 won, the part of the building No. 2 of this case was 84,000,000 won, and the share of the building site was 36,000 won (the appraiser assessed the price of each part of the building of this case and the share of the building of this case in accordance with the guidelines on the share of the land and the share of the building on the premise that the registration of transfer of the share of the building site was completed, on the premise that the appraisal of the share of the building of this case should be completed, and the appraisal of only each part of the building of this case, other than the share of the building of each site, was ordered to sell only each part of the building of this case, without reflecting the value of the share of the building site, at each minimum sale price, and the public notice of the sale date and the preparation of specifications of the goods to be sold, it stated

D. In the auction procedure conducted thereafter, there was a decision to permit the sale of the instant building No. 1 to the non-applicant No. 3, but the auction court decided to permit the sale of the instant building No. 2 to the non-applicant No. 4 on June 12, 200 at the end of the auction procedure with the new sale date set for the instant building No. 2 as the purchaser was not decided.

E. However, the auction court ordered the second sale of each part of the building of this case on April 29, 2003, where both the claimant and the non-applicant 3 and the non-applicant 4 did not pay the price. On October 7, 2003, the auction court ordered the second sale of each part of the building of this case on April 29, 2003, and decided to permit the sale of the building of this case on October 7, 2007, which had not been decided by the purchaser at the auction procedure thereafter, but had been ordered again on August 10, 204 to order the second sale of the building of this case on August 10, 204, but the second sale had been ordered again on August 10, 204. The public notice of the sale date and the preparation of a detailed statement of sale (hereinafter "public notice of the sale date of this case and the preparation of a detailed statement of sale articles"). In the auction procedure, the appellant stated that there was no right to a site.

F. Meanwhile, at the time of the appellant’s filing of the purchase declaration, the minimum sale price of the instant building was KRW 161,114,00, and the part of the instant building was KRW 17,616,000 (the auction court of this case determined the minimum sale price on the date of sale immediately before re-sale in cases where a second sale is ordered; ② the amount reduced by 20% from the minimum sale price determined on the date of sale which the previous purchaser was set at the highest bidder in cases where a second sale date is designated; ③ the minimum sale price of each of the instant building was set at the highest bidder in the same auction procedure; ③ the amount reduced by 20% from the minimum sale price set at the date of sale which the previous purchaser was set at the highest bidder in cases where the second sale price was set at the same auction procedure; and as a result, the lower court rejected each of the instant lowest sale price on the grounds that there was a significant fault in determining the minimum sale price of this case.

2. Grounds of appeal and determination

The gist of the grounds for appeal of this case is that the court of original judgment rendered a ruling of disapproval of the sale of this case on the ground that there was a serious fault in the determination of the minimum sale price of this case, but the appellant is required to protect the trust as it believed the minimum sale price determined by the court and reported the purchase. Thus, it is unlawful that the court of original judgment made a ruling of disapproval of the sale of this case

However, if the right to use the site of this case has no agreement or notarial deeds that can be separately disposed of with the section for exclusive use and the section for exclusive use, the court of execution should have determined the minimum sale price of the section for exclusive use and the right to use the site of this case as a matter of course because it has been recognized that the section for exclusive use and the right to use the site of this case has no effect on the right to use the site of this case, and if the mortgager acquired the right to use the site at the time of sale of the site through order of correction of mortgage or inquiry about appraiser's right to use the site of this case, the court of sale should have determined the minimum sale price of the section for exclusive use and the right to use the site of this case to use the site of this case, including the right to use the site of this case, as stated in Article 66 of the former Civil Procedure Act, for the purpose of preparing the sale price of the section for exclusive use and the right to use the site of this case, and thus, if the right to use the site was found to exist at the time of sale announcement and announcement.

3. Conclusion

Therefore, the order of the court below cannot be deemed to have erred as alleged by the appellant, and there is no ground to revoke the order of the court below ex officio even after examining records. Thus, the appeal of this case is dismissed. It is so decided as per Disposition.

[Attachment Form 4]

Judges Song Jong-chul (Presiding Judge) Kim Jong-il