Whether the requirements for commencement of an auction for the exercise of security right to real estate and the proof of the existence of the secured claim are the requirements for commencement of an auction procedure for the exercise of security right (negative)

The Civil Procedure Act is a requirement for the commencement of an auction for the exercise of a security right to real estate, and as a requirement for the commencement of an auction for the exercise of a security right to real estate, and as prescribed in Article 204 of the Rules of Civil Procedure, the creditor, obligor and owner (paragraph 1), the indication of security right and secured claim (paragraph 2), the indication of the property to be exercised a security right (paragraph 3) and the indication of the property (paragraph 3) when a security right is exercised on part of a secured claim, and the documents evidencing the existence of a security right under Article 724 of the Civil Procedure Act are submitted. The court of execution examines the existence of a security right within the scope of the above documents, but it does not require the creditor to prove the existence of a secured claim as a requirement for the commencement of an auction procedure for the exercise of a security right, and it does not require the creditor to prove the existence of a secured claim.

Articles 724 and 725 of the Civil Procedure Act, Article 204 of the Rules of Civil Procedure

Re-appellant

Busan District Court Order 200Ra48 dated July 21, 2000

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

The grounds of reappeal are examined.

1. The court below, based on the records, found that the Re-Appellant, who is a right to collateral security, was defective in the materials of the Re-Appellant's request for auction for the exercise of the right to collateral security, and ordered the Re-Appellant to explain the grounds for the claim for interest in arrears within five days from the date of receipt of the order to the Re-Appellant on Jan. 22, 200. The Re-Appellant submitted the guarantee of non-appeal's proof attached to the non-appeal on Jan. 25, 200, but the court of execution dismissed the claim for interest in arrears on Jan. 26, 200 when the court of execution submitted the documents attesting the existence of the right to collateral security, and it is hard to find that the court of execution has dismissed the claim for interest in arrears on the non-appellant's ground that the request for auction was not sufficient to prove the existence of a specific part of the claim for interest in arrears and that there is no reason for the non-appellant's request for auction due to the absence of any defects in the content of the claim.

2. However, we cannot agree with the above determination by the court below for the following reasons.

In order to exercise a security right to real estate, there exists a security right under the substantive law, the secured claim exists, and the due date for the secured claim shall arrive. However, the Civil Procedure Act is a requirement for the commencement of an auction for the exercise of a security right to real estate, and it is sufficient that the creditor, obligor, and owner (No. 1), the indication of a security right and the secured claim (No. 2), the indication of an asset subject to a security right (No. 3) and the indication of an asset subject to a security right (No. 4) when a security right is exercised on part of a secured claim, and documents proving the existence of a security right under Article 724 of the Civil Procedure Act are submitted. The court of execution examines the existence of a security right within the scope of the above documents, but it does not require the creditor to prove the existence of a secured claim in the auction procedure for the exercise of a security right and to prove the existence of a secured claim other than the date of commencement of the secured claim, and thus, it is not sufficient that the creditor can prove the existence of the secured claim in the auction procedure or auction procedure.

Nevertheless, in the commencement of the auction procedure for the exercise of security right, the court below's decision dismissing the Re-Appellant's request for auction of this part on the premise that the Re-Appellant, who is the applicant creditor, is responsible to prove the existence of the secured debt of the right to collateral security, which is the basis for the exercise of security right, is erroneous in the misapprehension of legal principles as to the requirements for commencement of auction for the exercise of security right.

3. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)