A. Whether Article 473 of the Civil Procedure Act applies mutatis mutandis to the discretionary auction procedure

B. Whether a lawsuit filed by the debtor against the mortgagee can be seen as an action of demurrer against the obligation to which Article 505 of the Civil Procedure Act applies mutatis mutandis

A. Article 473 of the Civil Procedure Act is not applicable to the discretionary auction procedure under Article 735 of the same Act in its nature.

B. If the debtor files a lawsuit claiming damages against the mortgagee and offsets the secured claim with the above claim against the secured claim, the foregoing secured claim cannot be deemed as a lawsuit of demurrer against the obligation to which Article 505 of the Civil Procedure Act applies mutatis mutandis to the above claim for damages.

A. Articles 473 and 735 of the Civil Procedure Act. Articles 505 and 507 of the Civil Procedure Act

Pung Forest Industry Co., Ltd., Counsel for the defendant-appellant

Seoul Central District Court Order 93Kao1661 dated April 16, 1993

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

The grounds for special appeal are examined.

1. Since no objection may be filed against a decision to suspend execution as prescribed in Article 473 or 507 of the Civil Procedure Act, the head of an immediate appeal in the petition of appeal shall be deemed a special appeal.

2. The record reveals that there is a damage claim against a special appellant against a stock company outside the appeal, and then filed a lawsuit for damages with the Seoul Civil Procedure District Court 93Kahap18292, and then filed a lawsuit for damages with the same court, which offsets the above claim against the equivalent amount of the secured claim of the right to collateral held by a special appellant with respect to the real estate owned by the said stock company against the above claim, the above secured claim shall be extinguished, and the above secured claim shall be claimed to be suspended from the auction procedure conducted on the basis of the above secured claim under Articles 735 and 473 of the Civil Procedure Act. The court below accepted this and decided to suspend

3. In light of its nature, Article 473 of the Civil Procedure Act does not apply mutatis mutandis to the discretionary auction procedure under Article 735 of the same Act, and if the order of the court below was based on Article 473 of the same Act, it shall be deemed that the court below erred by misapprehending the legal principles of the above Article

Meanwhile, in a case where there is a dispute as to the existence of the right to request a voluntary auction, in order to suspend the auction procedure, the court may suspend the auction procedure after filing an objection against the decision to commence the auction procedure pursuant to Article 603-3 of the Civil Procedure Act applied mutatis mutandis by Article 728 of the same Act and receiving an order to suspend compulsory execution pursuant to Article 484 of the same Act, or receiving an order to suspend compulsory execution pursuant to Article 505 of the same Act by applying mutatis mutandis Article 505 of the same Act, and receiving an order to suspend compulsory execution pursuant to Article 507 of the same Act. First, the court below's order is not determined by Article 603-3 as the court of the lawsuit was decided by the court of the lawsuit, and it is evident that the lawsuit against the above stock company against the special

Ultimately, the court below's decision to suspend the auction procedure of this case is erroneous in the misunderstanding of legal principles as to the suspension of the auction procedure, which affected the conclusion of the judgment. Therefore, the ground for appeal assigning this error has merit.

4. Therefore, the order of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)