In case where it is not clear that there is a report of lien between the highest bidder and the date of the decision on sale after the decision on the successful auction procedure of real estate, and that there is no room for the establishment of the lien, measures to be taken by the executing court (=decision

Article 121 Subparag. 6, Articles 123 and 127(1) of the Civil Execution Act

[Plaintiff-Appellant] 2005Ma643 decided August 8, 2005 (Gong2005Ha, 1546)

[Judgment of the court below]

Incheon District Court Order 2007Ra299 dated March 14, 2008

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.

In a case where it is not clear that there is a report of a lien between the date of sale decision after the request for purchase with the knowledge that the bidder has no lien on the relevant real estate, and even if the highest bidder has already been designated as the highest bidder, it is not clear that there is no room for the establishment of the lien between the date of sale decision thereafter, and that there is no room for the establishment of the lien. In a case where it is reasonable that the execution court has made a decision not to permit the sale by interested parties' objection or ex officio because there is a significant increase in the burden of the right on the real estate sold to which the bidder will take over by the future, and that there is an objection as provided in subparagraph 6 of Article 121 of the Civil Execution Act.

According to the records, the survey of the current status of the apartment of this case stated to the effect that "the possession relation was not closed, although the owner of the apartment of this case visited several times at the present site, and the detailed lease relation was not closed, even if the notice was given, and there was no contact with the owner of the apartment of this case, and there was no moving-in household in terms of resident registration." The details of the sale articles also indicate that the apartment of this case had no particulars of lease or special circumstances investigated, and that there was no record of lien report until the report of purchase was made by the re-appellant. The date of the decision on sale of the apartment of this case was scheduled to be around 13:00 on October 4, 2007. However, the re-appellant, the owner of the apartment of this case, who was the owner of the apartment of this case, was the owner of the apartment of the apartment of this case, and the owner of the apartment of the apartment of this apartment of this case occupied the apartment of this case, and that the above apartment was attached to the present order of this case's immediate appeal.

In light of the above legal principles, the Re-Appellant filed an application with the court of first instance for non-sale of the apartment of this case since he was aware of the existence of a lien on the apartment of this case until the time of purchase due to a survey report on the current status of possession of the apartment of this case and the specification of sale articles, etc., without stating accurate information about the present status of possession. However, according to the documents submitted by the Re-Appellant, there is no room for establishing a lien on the apartment of this case. In such case, if it is clear that there is no room for establishing a lien after investigating the re-appellant, who is an interested party prior to the decision of provisional permission, the court of execution shall investigate whether the lien was established by examining the re-appellant, who is the interested party, and make a decision not to permit the sale by recognizing the objection against the permission of sale of this case as legitimate, and in this case, there is no report on the lien until the date of sale decision, or that the lien is unlikely to oppose the buyer.

Nevertheless, the court below maintained the decision of the court of first instance that dismissed the application of this case on the ground that it is difficult to recognize that the lien, which can oppose the buyer, exists in the apartment of this case. It is erroneous in the misapprehension of legal principles as to the establishment, etc. of lien, or in the misapprehension of legal principles as to it, which affected the conclusion of the judgment.

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 Kim Ji-hyung (Presiding Justice)