[1] In a case where there are two or more petitioners filing an immediate appeal against the decision on permission for sale, whether each appellant shall deposit “money or securities equivalent to 1/10 of the sale price” as provided by Article 130(3) of the Civil Execution Act (affirmative with restriction)

[2] In a case where a petition of appeal is not accompanied by a document proving that a guarantee under Article 130(4) of the Civil Execution Act has been provided, whether the court shall issue an order of correction, such as ordering the submission of the document within a reasonable period prior to the rejection of the petition of appeal (negative)

[1] Article 130(3) of the Civil Execution Act provides that "any person who intends to file an appeal against the decision of permission for sale shall deposit money equivalent to 1/10 of the proceeds of sale with the guarantee or securities recognized by the court." The legislative purport of the above provision is to prevent delay in the procedure of an appeal by filing an unauthorized appeal by neglecting the obligation to deposit the security against all appellant dissatisfied with the decision of permission for sale. The appeal against the decision of permission for sale is limited to cases where an interested party raises a ground for objection against the permission for sale. Article 122 of the Civil Execution Act provides that any objection shall not be filed on the ground of other interested parties' rights. Article 90 of the Civil Execution Act provides that the person who is entitled to become an interested party in the procedure of auction shall be restricted list in the case of a lawsuit against the decision of permission for sale, and the amount of guarantee to be provided depending on the circumstances such as whether multiple appellant separately submits a written appeal against the decision of permission for sale varies depending on the amount of an appeal, barring special circumstances as to the right relationship between the appellant and the appeal.

[2] In the event that a petition of appeal is not accompanied by a document evidencing that cash equivalent to 1/10 of the proceeds of sale or securities recognized by the court have been deposited as security with guarantee under Article 130(4) of the Civil Execution Act, the court does not require the court to order the deposit or submit the document within a reasonable period of time when dismissing the petition of appeal.

[1] Articles 90, 122, and 130(3) of the Civil Execution Act / [2] Article 130(3) and (4) of the Civil Execution Act

[2] Supreme Court Order 90Da71 dated February 13, 1991 (Gong1991, 1153) Supreme Court Order 92Ma58 dated March 6, 1992 (Gong192, 1268)

New Asia Co., Ltd. (Attorney Yoon Jae-sik, Counsel for defendant-appellant)

Daejeon District Court Order 2006Ra41 dated April 21, 2006

The reappeal is dismissed. The costs of reappeal shall be borne by the re-appellant.

The grounds of reappeal are examined.

1. As to the assertion of misapprehension of legal principles as to calculation of the amount of guarantee deposit in a case where multiple petitioners have filed a joint appeal against the decision of permission for sale

Article 130(3) of the Civil Execution Act provides that "any person who intends to file an appeal against the decision of permission for sale shall deposit by guarantee the money equivalent to 1/10 of the proceeds of sale or the securities recognized by the court." The legislative purport of the above provision is to prevent delay in the procedure of an appeal by filing an unauthorized appeal by putting an obligation to deposit all appellant dissatisfied with the decision of permission for sale, by putting an appeal against the decision of permission for sale. There are cases where an interested party raises an objection against the permission for sale. However, Article 122 of the Civil Execution Act provides that an appeal against such objection shall not be filed on the ground of other interested parties' rights. Article 90 of the Civil Execution Act provides that a limited list of persons who are eligible to become an interested party in the procedure of auction, and that the amount of guarantee varies depending on the circumstances such as whether a multiple appellant files an appeal against the decision of permission for sale may separately submit a written appeal against the decision of permission for sale. In full view of the above, it is unreasonable to view that there are no special circumstances that an appeal against the decision of permission for sale.

In light of the records, the court below's decision to permit the sale of this case was accompanied by the document of deposit equivalent to 1/10 of the purchase price under the name of the re-appellant and the non-party. The non-party filed an appeal in the status of lessee or lien holder of real estate for auction purpose of this case. The non-party filed an appeal in the status of owner of adjacent land where the non-party building was located. Thus, the interests and the qualification of interested parties are different. Thus, the non-appellant and the non-party should deposit money or securities equivalent to 1/10 of the purchase price. Thus, the non-party deposited only the amount equivalent to 1/10 of the purchase price under the name of the non-party and the non-party. Thus, the appeal of the court below was just and it did not attach documents proving that the legitimate guarantee under Article 130 (4) of the Civil Execution Act was offered. It did not err in the misapprehension of legal principles as alleged in the grounds for appeal.

2. As to the assertion of misapprehension of the legal principle as to correction order

In the event that a petition of appeal is not accompanied by cash equivalent to 1/10 of the proceeds of sale or documents evidencing the deposit of securities recognized by the court as security under Article 130(4) of the Civil Execution Act, the court's rejection of the petition of appeal does not require the court to order the deposit within a reasonable period of time or to submit documents (see Supreme Court Order 90Da71, Feb. 13, 1991; Supreme Court Order 92Ma58, Mar. 6, 1992, etc.). Thus, on the ground that the court below did not issue a separate order of correction, it cannot accept the argument in the grounds of appeal on this part that there was an error of law by misunderstanding the legal principles as to the order of correction

3. Legal principles concerning the rejection of an appeal filed by an appellant who is not an interested party.

In this case, the non-party did not submit documents evidencing that the non-party provided a guarantee, and even if it is not an interested party under Article 90 of the Civil Execution Act, it is logical to review whether the general requirements of the appeal were met after the fulfillment of the requirements of the guarantee, which are special conditions in the decision of permission for sale. Thus, the court below should have first dismissed the appeal on the ground that the non-interested party did not have been an interested party prior to the rejection of the petition on the ground that the appeal was made under Article 130 (4) of the Civil Execution Act and the ground for rejection of the appeal under Article 15 (5) of the same Act exist concurrently. However, the ground for reappeal is alleged in the ground for reappeal. However, if the court below rejected the appeal on the ground that the non-performing party did not provide a guarantee, it cannot be viewed that the second-party's guarantee provided a joint name first and then the second-party's guarantee was unlawful.

4. Conclusion

Therefore, the reappeal of this case is dismissed, and the costs of reappeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)