The validity of an auction procedure without notifying a co-owner of the application for compulsory auction

Even though it was not notified that there had been an application for compulsory auction against a co-owner of real estate, if the auction price has already been determined and the auction price has been paid and the auction procedure has been completed and the registration of ownership transfer based on the auction procedure has been completed, such reasons alone cannot be deemed null and void.

Article 649(1) of the Civil Procedure Act

【Court Decision 69Ma922 decided Oct. 27, 1969; 69Ma922 decided Oct. 27, 1969

Plaintiff

Defendant

Jeonju District Court Decision 81 Gohap97, 122 decided Feb. 1, 200

The Defendant-Counterclaim Plaintiff’s appeal is dismissed.

Expenses for appeal shall be borne by the defendant (Counterclaim Plaintiff).

The case for the appraisal of 251 square meters from the land lot 251 square meters and building number 2 of the above ground shall be attached to the auction and the remaining amount after deducting the auction cost from the auction price shall be distributed in half each of the plaintiff (Counterclaim defendant: the plaintiff is only the plaintiff in the future) and the defendant (Counterclaim plaintiff: the defendant is only the defendant in the future).

Litigation costs shall be borne by the defendant.

The original judgment shall be revoked.

The plaintiff's main claim is dismissed.

With respect to a half of the share of the above real estate to the non-party, the plaintiff performed the procedure for registration of cancellation of the share ownership transfer registration and confirmed that the above real estate is owned by the defendant, which was completed as No. 4345 on June 26, 1981.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

1. Determination as to the principal lawsuit

Of the real estate stated in the purport of the claim (for the foregoing real estate), the registration of ownership transfer has been made in the name of the defendant with respect to one half of the real estate portion, and with respect to the remaining one half of the real estate portion, the fact that the registration of ownership transfer has been made in the name of the plaintiff on the ground of the successful bid on June 26, 1981 at Jeonju District Court Decision 43445, Jun. 26, 1981 and May 19, 1981 is presumed to be co-ownership by the plaintiff and the defendant.

The defendant's assertion that the above non-party's share of 10,00 won was cancelled on July 10, 1972 and that the above non-party's share of 10,00 won was cancelled on August 10, 197, and the non-party's claim that the non-party's share of 10,000 won was cancelled on March 7, 197, and that the non-party's share of 10,000 won was cancelled on March 27, 197, and the non-party's claim that the non-party's share of 10,000 won was cancelled on May 197, 197. The non-party's claim that the non-party's share of 10,000 won was non-party's share of 10,000 won on the above non-party's share of 10,000 won on the non-party's share of 10,000 won.

In other words, the defendant is the co-owner of the real estate of this case, and the auction court is required to notify the defendant of the application for the above compulsory auction, but the defendant did not give the defendant an opportunity to preferentially auction, so the above auction procedure is null and void. Therefore, even though the plaintiff's registration of transfer of ownership in the plaintiff's name which was made based on the above null and void auction procedure was not notified to the co-owner, even if there was no notification to the co-owner, so long as the auction procedure has already been completed due to the payment of the bid price determined and the completion of the distribution procedure and the registration of transfer of ownership based on the successful bid has been made, the above reasons alone

Nos. 1 and 2 (a certified copy of each register) and Nos. 3 (a written claim for subdivision) which do not dispute the establishment of the plaintiff, and the plaintiff sought a division of the real estate of this case on July 2, 1981, but the defendant did not respond to the plaintiff's claim for subdivision, so it is not possible to divide the real estate of this case in consultation. Therefore, it is not necessary to divide the real estate of this case in kind in principle. Since the real estate of this case is composed of one house and its site, it is difficult to attain equity among the co-owners even if it is divided in kind according to the ratio of share, and there is no other counter-proof, it is recognized that it is reasonable to divide the real estate of this case by auction of all of the real estate of this case.

2. Judgment on the counterclaim

The defendant borrowed 30,00,00 won from the non-party without interest on July 10, 1972 from the non-party, with the maturity date on August 10, 1972, and 50,000 won on March 7, 1973, and 500,000 won on March 27, 1973, respectively, with the maturity date on May 1974, and the maturity date on May 27, 1974 entered into an agreement with the non-party for the transfer registration under the name of the non-party as to one half of the real estate owned by the defendant for the above debt security, and there is no reason for the non-party to claim that the non-party's claim for the transfer registration of ownership was invalid on May 27, 1973, and some of the above debt was deposited on July 29, 198. Therefore, the non-party's claim that the non-party's claim for the transfer registration of ownership was invalid in the auction procedure.

3. Conclusion

In the same way, the real estate of this case shall be attached to the auction and distributed to the plaintiff and the defendant one half of the remainder after deducting the auction expenses from the proceeds thereof. Thus, the plaintiff's claim of this case of this case shall be accepted as well as the defendant's counterclaim is dismissed as the defendant's counterclaim is without merit. Thus, the judgment of the court below in this conclusion is just and the defendant's appeal is without merit, and the costs of appeal shall be borne by the losing defendant and it is so decided as per Disposition.

Judges Lee Jong-ho (Presiding Judge)