Whether an auction court may decide not to grant ex officio a successful bid on the grounds that a tenant with opposing power has demanded a distribution after the bid date (affirmative)

If a tenant who has an opposing power before the successful bid date after the bid date, demands a distribution in the real estate auction procedure, there is a significant defect in preparing a detailed statement of bid items concerning the intention to purchase the successful bidder and the succession to the lease relationship that has an effect on the decision on the purchase price, and the decision on the minimum bid price that fails to reflect the lessee's demand for distribution, thereby making a decision on the successful bid ex officio is legitimate.

Articles 617-2, 633 subparag. 6, and 635(2) of the Civil Procedure Act

[Plaintiff, Appellee] 97Ma1612 decided Oct. 13, 1997 (Gong1997Ha, 3737)

Eardoing fever

Busan District Court Order 97 Doz. 12155 dated February 24, 1998

The appeal is dismissed.

According to the records, in order for the creditor, Aju Mutual Savings Bank Co., Ltd. to collect the loan claims against Lee Jong-ok, a joint and several surety and a joint and several surety, applied for an auction to exercise the security right on August 10, 1995 with respect to the subject matter of the bid in this case owned by Jeong-young, a person who has established the right to collateral security, on the basis of the right to collateral security. The court below decided to commence the auction on May 26, 1997 and ordered four times the bidding date, and failed to comply with the bidder's bidding although there was no bidder's bidding, and thereafter, on February 15, 1998, the appellant reported the purchase at a highest price of KRW 53,100,000,000, which is higher than the minimum bid price determined by the court below, but completed on March 26, 1992, which is the date of successful bid, and received the right to demand a distribution of the lease deposit at the court below on the same date.

With regard to this, the appellant who is the bidder at the highest price in this case filed an appeal against the decision of rejection of the bid bid, which seeks the cancellation of the original decision, but no appeal has been raised until now.

[However, in light of the fact that the court of original judgment rejected the successful tender for the subject matter of this case, "the tenant with an opposing power prior to the date of successful tender after the date of bid", it seems that the appeal of this case is unlawful in view of the fact that the appeal of this case was filed by the appellant, who is the bidder, with the highest price higher than the minimum bid price, by the fact that "the tenant with an opposing power prior to the date of tender after the date of bid, has a significant defect in the determination of the lowest successful bid price, that is, the decision of package deal tender price, or the preparation of a specification of tender items" under Article 633 subparagraph 6 of the Civil Procedure Act.

Therefore, as to whether the above reasons determined by the court below ex officio can be seen as the reasons for refusing a successful bid under Article 633 subparag. 6 of the Civil Procedure Act, Article 617-2 of the Civil Procedure Act provides that the court of execution shall prepare and keep a copy of the tender items statement, which states prior to the bidding, the indication of the real estate prior to the bidding, the possessor and the title of possession of the real estate, the period for possession, the statement by the interested parties on rent or deposit, the statement by the interested parties on the registered real estate, the right or provisional disposition on the registered real estate, the effect of which is not extinguished by the successful bid, and make it available to the general public for inspection. The purpose of the provision is to accurately grasp the current status and legal relationship of the real estate subject to the bid and to prevent unexpected damages at the same time when the applicant for the purchase intends to refer to the decision of the successful bid and to prevent unexpected damages. Thus, if the entry of the tender items statement is inconsistent with the actual situation of the real estate subject to the bid of this case, whether the applicant for the defect affects the decision of ex officio.

On the other hand, if a lessee who acquired an opposing power prior to the highest mortgagee of the real estate subject to bidding, files a report on the right and a demand for distribution in the relevant bidding procedure in the lease contract, the right to lease expires due to the successful bid, and as a result, the successful bidder obtains the real estate that has no burden on the right to lease. However, if the lessee fails to report the right and demand a distribution in the relevant bidding procedure, the right to lease continues to exist even after the successful bid, and the successful bidder is bound to acquire the real estate that has a burden on the right to lease. Thus, if the above tenant exists in the real estate subject to bidding, whether the lessee has reported the right and demand for distribution in the relevant bidding procedure is a significant factor affecting the decision on the minimum successful bid price of the

However, according to the above facts, the above tenant who acquired opposing power prior to the 60th date of this case's bid price of 30th 6th 5th 6th 6th 6th 6th 7th 6th 6th 6th 6th 6th 9th 6th 9th 6th 60th 9th 6th 60th 9th 9th 6th 9th 9th 6th 9th 6th 60th 9th 9th 6th 96th 9th 9th 6th 90th 9th 9th 6th 96th 9th 6th 96th 6th 96th 196th 9th 6th 9th 6th 90th 9th 9th 9th 9th 9th 6th 90th 9th 196th 9th 196th 9th 6th 196th 3th 6th 3th 99.).

Therefore, the decision of the court below that rejected the successful tender for the above reasons is just and unlike records, it is not possible to find any illegality in the order of the court below, and the appellant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yellow-type (Presiding Judge)