In case where a successful bidder transfers real estate for auction purpose to an obligor or owner after paying the price, whether the successful bidder can apply for an order to deliver it to the obligor or owner (negative)

Since the order for delivery of real estate cannot be granted to the successful bidder (successful bidder), if the debtor or owner has an actual possessory right, the proviso to Article 647(1) of the Civil Procedure Act may be applied by analogy to the proviso to Article 647(1) of the Civil Procedure Act if the debtor or owner has the actual possessory right. As the effect of the sale, the seller is obligated to transfer the ownership to the successful bidder, and therefore the seller is liable to transfer the ownership to the buyer, so it shall not be permitted to apply for the delivery order if the successful bidder transfers the ownership, such as the sale, to the owner, debtor, or other possessor who is the other party to the order after the payment of the purchase price. Nevertheless, in order to issue the order for delivery of real estate, it shall be recognized that the source of the possessory right is extinguished

Article 647(1) of the Civil Procedure Act

Re-appellant

Seoul District Court Order 98Ra2927 dated November 25, 1998

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

The grounds of reappeal are examined.

The court below rejected the Re-Appellant's appeal on the ground that the Re-Appellant could not deliver the instant real estate since the Re-Appellant purchased the instant real estate from the successful bidder (applicant) on the ground that "the sales contract concluded between the appellant and the successful bidder is insufficient to deem that it still remains valid until now (which seems to have been rescinded due to the payment of the appellant)" was dismissed.

Since the order for delivery of real estate cannot be granted to the successful bidder (successful bidder) more rights than the substantive rights, the debtor or owner may refuse the application for delivery of the successful bidder (successful bidder) by analogying the proviso of Article 647(1) of the Civil Procedure Act if the debtor or owner has a substantive possessory right. As the effect of the sale, the seller is obligated to transfer the sale part to the successful bidder, so if the successful bidder transfers the ownership, such as sale, to the owner, debtor or other possessor who can be the other party to the order after the payment of the price, it shall be interpreted that the delivery order cannot be applied.

Therefore, since a sales contract was concluded between the re-appellant and the debtor and the successful bidder who is the applicant for the order of delivery of real estate by proxy, the re-appellant shall be deemed to have had the source of possessory right against the applicant for the order of delivery of real estate. Nevertheless, in order to issue the order of delivery of real estate, it should be recognized that the source of possessory right was extinguished, such as the cancellation of the sales contract. The fact that the source of possessory right was extinguished should be proved by

Nevertheless, the order of the court below that dismissed an appeal without clearly stating whether to cancel the sale or purchase shall be deemed to have committed an error by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the order to deliver real estate and the burden of proof.

Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the case.

Justices Kim Jong-sik (Presiding Justice)