[1] Whether an interested party, other than the debtor, can serve as a ground for appeal for the decision of permission for successful bidding on the ground that the relevant court document related to progress of auction, which was not served on the debtor, is not served

[2] The contents that the section of exclusive ownership of the right to use site is indivisible in a sectioned building

[3] Measures to be taken by the executing court where there is no indication of the right to use the site in the application for the auction of a sectioned building

[4] In a case where there is no request for auction as to the right to use site in an auction of a sectioned building, whether the right to use site should be held in a lump sum (negative)

[5] In a case where a creditor of a high-amount demand for distribution has a limited amount to the small amount to be distributed to the creditor of the request for auction, whether such request for auction constitutes an abuse of rights (negative)

[1] The decision to commence the auction is not only an effective seizure but also a judgment which forms the basis of the auction procedure, and thus, it cannot be deemed as effective unless it is notified to the parties concerned, and therefore, it cannot continue the auction procedure valid without the notification of the decision to commence the auction against the debtor, regardless of whether the seizure took effect separately. Thus, as an interested party who is not the debtor, the defects in the service of the decision to commence the auction against the debtor may also be raised as a ground for appeal against the decision to permit the successful bid under the provisions of Articles 642(2) and 633 subparag. 1 of the Civil Procedure Act, while an objection against the permission to grant the successful bid under the provisions of Article 634 of the same Act cannot be raised as a ground for appeal against the decision to permit the successful bid. Thus, even if there is a defect in the service of the bidding date against the debtor,

[2] The right to use site of a sectioneded building is recognized as not being able to separate from the section for exclusive use and the section for common use if there is no agreement or notarial deed that enables separate disposition from the section for exclusive use, and the decision to commence auction and the seizure of the section for exclusive use as a matter of course shall be limited to the right to use site, which is a subordinate or subordinate right, and if there is any agreement or notarial deed, the decision to commence auction and the seizure of the section for exclusive use shall not affect the right to use site

[3] In the auction of a sectioned building, even if there is no indication of the right to use the site in the application for the auction, the court of execution shall order the joint delivery officer to investigate the existence of the right to use the site, and whether there is a covenant or notarial deed which can be separately disposed of with the section for exclusive use and the section for common use, and shall also collect necessary data by examining the related person. If the existence of the right to use the site, which is an indivisible with the section for exclusive use, has been verified as a result, is included in the auction evaluation as a part of the object for auction, and the minimum bid price shall be determined by including it in the auction evaluation, and even in the public announcement of the bidding date and the preparation of the detailed statement of bidding items, if there is no right to use the site, or if there is no agreement or notarial deed, it shall proceed with the auction procedure only for the section for exclusive use and the section for common use, unless there is a special reason.

[4] Even in cases where an execution court proceeds an auction procedure only with respect to the section for exclusive use and section for common use without examining the existence of the right to use the site, on the ground that no request for auction has been made even though the right to use the site was made, if there is no agreement or notarial deed which enables separate disposal of the right to use the site, the decision to commence auction and seizure against the section for exclusive use is limited to the right to use the site. (However, in this case, the interested parties may raise an objection to the bid permission under Articles 632, 642(2) and 633 subparag. 6 of the Civil Procedure Act or receive remedy by filing an appeal against the decision to permit the bid, or by filing an appeal against the decision to permit the bid, on the ground that the right to use the site does not extend to the right to use the site and the effect of the right to use the site does not meet the requirements of the auction, and thus, even if the right to use the site and the right to use the section for exclusive use and the right to request auction did not exist collectively.

[5] Even if there is a creditor who has a different amount of demand for distribution, and the amount to be distributed to the creditor of the request for auction is limited to the small amount, such request for auction does not constitute an abuse of rights or constitute an abuse of rights.

[1] Articles 161, 633 subparag. 1, 634, and 642(2) of the Civil Procedure Act / [2] Articles 2 subparag. 6 and 20 of the Multi-Unit Residential Building Act / [3] Articles 124(2), 130, 603-2, 615, and 618 subparag. 1 of the Civil Procedure Act / [4] Article 615-2 of the Civil Procedure Act / [5] Article 2 of the Civil Act, Article 1 of the Civil Procedure Act

[1] Supreme Court Order 91Ma239 delivered on December 16, 1991 (Gong1992, 633) 91Ma728 delivered on January 30, 1992 (Gong1992, 1265) Supreme Court Order 95Ma147 delivered on July 11, 1995 (Gong1995Ha, 2930) / [2] Supreme Court Order 94Da1272 delivered on August 22, 1995 (Gong195Ha, 3232) / [5] Supreme Court Order 91Ma500 delivered on June 9, 192 (Gong192, 211)

Re-appellant

Daejeon District Court Order 96Ra424 dated February 26, 1997

The reappeal is dismissed.

The grounds of reappeal are examined.

On the first ground for appeal

In addition, the decision on commencement of auction does not bring about an effect of seizure, but it cannot be deemed effective unless it is notified to the parties. Therefore, regardless of whether the seizure took effect separately, it cannot continue the auction procedure valid without notifying the debtor of the decision on commencement of auction. Thus, interested parties, other than the debtor, may also regard the deficiency in the service of the decision on commencement of auction on the debtor as a ground for appeal against the decision on permission of successful bid under Articles 642(2) and 633 subparag. 1 of the Civil Procedure Act (see Supreme Court Order 91Ma239, Dec. 16, 191). On the other hand, an objection against the permission on successful bid under Article 634 of the same Act cannot be asserted as a ground for appeal against the decision on permission of successful bid (see Supreme Court Order 91Ma239, Dec. 16, 191). Thus, even if there is a defect in the service of the bidding date to the debtor, it cannot be asserted as a ground for appeal against the decision on permission of successful bid.

According to the records, as long as it can be recognized that the original copy of the decision on commencing the auction of this case was served on the debtor on January 18, 1995, the court below's rejection of the re-appellant's assertion that the procedure was unlawful on the ground that the court document related to the auction progress was not served on the debtor, is acceptable, and there is no error of misconception of facts or legal scenario as to the auction procedure such as the theory of lawsuit, and there

On the second ground for appeal

The right to use site of a partitioned building is recognized as in the case where there is no agreement or notarial deed that enables a separate disposition with the section for exclusive use and the section for common use, and the decision to commence the auction and the seizure against the section for exclusive use as a matter of course are not in the right to use site, which is a subordinate or subordinate right. If there is any agreement or notarial deed with such contents, the decision to commence the auction and the seizure against the section for exclusive use shall not affect the right to use site (Article 20(1), (2), and (4) of the Act on the Ownership and Management of Aggregate Buildings). A collective auction shall be conducted where several real estate becomes an object of auction (Article 615-2 of the Civil Procedure Act).

Therefore, even if there is no indication of the right to use the site in the auction application for a sectioned building, the court of execution shall instruct the owner to investigate the existence of the right to use the site, and whether there is a covenant or notarial deed that can be separately disposed of with the section for exclusive use and the section for common use, and shall collect necessary data by examining the related person, and if the existence of the right to use the site is found to be indivisible with the section for exclusive use as a result of the examination, it shall be included in the auction evaluation as part of the object for auction, and the minimum bid price shall be determined by including it in the auction evaluation, and even in the public announcement of the bidding date and the preparation of the detailed statement of bidding items, if there is no right to use the site, or if there is no agreement or notarial deed, it shall proceed with the auction procedure only for the section for exclusive use and the section for common use, unless there is any special reason.

However, even in cases where an execution court proceeds an auction procedure only for a section for exclusive use and a section for common use without examining the existence of the right to use the site, on the ground that there is no request for auction against the right to use the site, if there is no agreement or notarial deed which enables separate disposition as to the right to use the site, the decision to commence auction and seizure against the section for exclusive use shall be limited to the right to use the site. (In this case, interested parties may raise an objection to the bid permission under Articles 632, 642(2) and 633 subparag. 6 of the Civil Procedure Act or be relieved by filing an appeal against the decision to permit the bid, on the ground that the notice of bid date violates the provisions of Acts or there is a serious defect in the determination of the minimum bid price or in the preparation of the specification of tender items.) If there is an agreement or notarial deed as above, the decision to commence auction and seizure on the section for exclusive use does not extend to the right to use the site, and thus the right to use the site does not meet the requirements of auction.

Therefore, even if the right to use the site exists in the partitioned building of this case, insofar as there was no request for the auction, the executing court did not make a blanket auction with the section for exclusive use and the section for common use, and such reason alone cannot be said to be a defect in the auction procedure of this case. The judgment below to the same effect is justifiable, and there is no error of law by misapprehending the legal principles of auction or collective auction as to the aggregate building such as theory of lawsuit.

In addition, even if there is a creditor who requests a distribution of other high amounts and the amount to be distributed to the creditor is limited to the small amount, such a reason alone does not constitute an abuse of rights, or there is no illegality in the auction procedure, the judgment below to the same effect is just, and there is no error of law by misunderstanding the legal principles as to the auction procedure such as a theory of lawsuit. All arguments are without merit.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)