An interested person who may file an appeal against the decision of approval of a successful bid in violation of surplus principle in a compulsory auction of real estate

Article 616 of the Civil Procedure Act is only a provision for the protection of creditors or execution creditors, and it is not for the legal interest or rights of debtors or owners of the target real estate. Thus, debtors and owners of the objects of auction are not interested parties who can dispute the decision of permission of auction in violation of this provision

Articles 616 and 641 of the Civil Procedure Act

Supreme Court Order 81Ma158 Dated August 29, 1981

Re-appellant

Daejeon District Court Order 86Ra97 dated August 16, 1986

The reappeal is dismissed.

The grounds of reappeal are examined.

Of the auction real estate in the case of this case as indicated in the judgment below, the registration of creation of a neighboring mortgage has been completed to secure the Re-Appellant's obligation (24,00,000,000 won for the maximum amount of the claim, and 16,750,027 won for the actual amount of the debt) by designating the Livestock Cooperative of the case as a collateral holder. Thus, in order to carry out a compulsory auction on the above real estate, the appraisal price of KRW 8,775,620 for the above real estate shall be below the secured obligation amount of the above collateral, so it should have been notified of surplus pursuant to Article 616 of the Civil Procedure Act, and deposited the shortage thereof with the court's assistance in the auction court which made the decision of approval of the successful bid in violation of the above provision, and thus, the court below dismissed the appeal to the effect that the appeal cannot be filed because the debtor is not an interested person.

According to the records, in order to proceed with a compulsory auction for the above real estate, since the appraisal price is lower than the secured debt amount of the right to collateral security, the procedure under Article 616 of the Civil Procedure Act should be followed and the auction should have been held in accordance with the prescribed requirements, and there is an error of permission of auction for the amount below the amount of claims of the livestock industry cooperative which takes precedence over the execution creditor without taking such procedure. However, Article 616 of the Civil Procedure Act prevents the execution creditor from taking an unfortunate auction even though there is no possibility that the execution creditor will receive repayment by execution, and it is not only a provision for protecting the creditor or the execution creditor, but also a provision for protecting the creditor or the owner of the secured real estate (see Supreme Court Order 81Ma158 delivered on August 29, 1981).

Thus, the Re-Appellant is merely the debtor and the owner of the object of auction in the compulsory auction of this case and is not an interested party who can contest the above mistake in the auction of this case. Further, the reappeal cannot dispute on the ground of other interested parties' rights, and since the repayment deadline has been postponed for one year under the agreement with the re-appellant, the auction court did not have any error of law as to the application of auction of this case even though the auction of this case cannot continue to exist due to a ground for objection under Article 633 subparagraph 1 of the Civil Procedure Act, although the appraisal price of the object of auction of this case is calculated by omitting the appraisal of the facility of a fish tank attached to the land, the appraisal price of the object of auction of this case does not constitute a legitimate ground for reappeal under Article 13 and each subparagraph of Article 11 (1) of the Civil Procedure Act.

All the arguments are groundless.

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

Justices Yoon Yoon-tae (Presiding Justice)