[1] The time when a co-owner files a preferential purchase report and provides a guarantee in a tender (=before the declaration of termination of the tender by the execution officer)

[2] In a case where a co-owner either submits a preferential purchase declaration only before the bidding date or provides a bond of less than the bid bond provided by the highest price bidder, whether the execution officer shall give the co-owner an opportunity to pay the bond by asking whether he/she will be present at the bidding date after confirming the highest price bid, confirming the attendance of the co-owner

[3] Where a co-owner who submitted a preferential purchase report before the bidding date submitted a bid list by participating in the bidding on the bidding date, whether the preferential purchase right may be deemed waived (negative)

[1] Article 650(1) of the Civil Procedure Act provides that co-owners may provide a guarantee by the date of auction and declare a preferential bid for the debtor's share at the same price as the highest bid price, and Article 650(2) of the same Act provides that in the case of paragraph (1) of the same Article, the court shall permit the successful bid to the co-owners regardless of the highest bid price. Since the co-owners' preferential right to purchase is a system that provides the co-owners with an opportunity to obtain a successful bid or a successful bid at the price after the highest bidder has decided, the co-owners' preferential bid declaration and the provision of a preferential bid guarantee shall not be limited until the execution officer declares the completion of the bid, and it shall not

[2] Even in cases where a co-owner has reported the preferential purchase by submitting a co-owner's preferential purchase report to the executing court or the execution officer prior to the bidding date, it shall not be deemed that the execution officer has reported the preferential purchase at the same time only by providing the bid bond (the amount above the bid bond to be offered by the highest bidder) but shall not be deemed to have reported the preferential purchase at the same time. Even in cases where only the preferential purchase declaration is submitted or the security money less than the bid bond provided by the highest bidder has been provided, the execution officer shall confirm the attendance of the person who reported the preferential purchase at the bidding date before the highest bidder and the bid price are opened and the declaration of termination of the tender is made, and shall be given an opportunity to purchase the bid bond at the highest bidding

[3] The fact that the co-owner who submitted the preferential purchase report before the bidding date submitted the bid list by participating in the bidding on the bidding date shall not be deemed to waive the preferential purchase right by itself.

[1] Articles 625 and 650 of the Civil Procedure Act, Articles 155-2 and 159-7 of the Rules of Civil Procedure / [2] Articles 625 and 650 of the Civil Procedure Act, Articles 155-2 and 159-7 of the Rules of Civil Procedure / [3] Articles 625 and 650 of the Civil Procedure Act, Articles 155-2 and 159-7 of the Rules of Civil Procedure

[1] Supreme Court Order 9Ma5871 dated January 28, 2000 (Gong2000Sang, 563)

Re-appellant

Daejeon District Court Order 2001Ra578 dated December 27, 2001

The order of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of reappeal are examined.

1. Summary of the original judgment

According to the reasoning of the order of the court below, the court below held that the Re-appellant submitted a "co-owner's preferential purchase report stating the purport that the bid bond will be paid at the bidding date in the case where there is a highest price bidder on the bidding date by exercising a preferential purchase right under Article 650 of the Civil Procedure Act as co-owner of the real estate of this case at around 09:30 on September 17, 2001, which was designated as the second bidding date of the real estate of this case as the second bidding date, and the Re-Appellant submitted a "co-owner's preferential purchase report" stating that the bid bond will be paid at the bidding date and the bid bond will be paid at the bidding date. On the bidding date, the non-party 2 submitted the bid price at KRW 153,100,000,000,000 to the court of execution, which stated the bid price at the bidding price at KRW 15,53,000,000,000 to the non-party 2.

2. The judgment of this Court

However, it is difficult to accept such judgment of the court below.

A. Article 650(1) of the Civil Procedure Act provides that co-owners may provide a guarantee not later than the date of auction and declare a preferential bid for the debtor's share at the same price as the highest bid price. Paragraph (2) of the same Article provides that in the case of Paragraph (1) of the same Article, the court shall grant the co-owners an opportunity to obtain a successful bid or a successful bid at the price, notwithstanding the highest bid price. Since the co-owners' preferential bid right is a system that provides co-owners with an opportunity to obtain a successful bid or a successful bid at the price after the highest bid price is determined, the co-owners' preferential bid declaration and the provision of a preferential bid guarantee should not be limited until the execution officer declares the completion of the bid, and it shall not be limited until the last bidding surveillance (see Supreme Court Order 9Ma5871 delivered on January 28,

Therefore, even in cases where a co-owner filed a preferential purchase declaration with the executing court or the execution officer by submitting a co-owner's preferential purchase declaration prior to the date of bidding, it shall not be deemed that the execution officer filed a legitimate preferential purchase declaration at the same time only, but at the same time, it shall not be deemed that the bid bond (the amount above the bid bond to be provided by the highest bidder) has been filed. Even in cases where only the preferential purchase declaration was submitted or the security money of less than the bid bond provided by the highest bidder has been provided on the bidding date, the execution officer shall confirm the attendance of the person who filed the preferential purchase declaration before the highest bid price is opened and the tender declaration is made, after confirming whether he/she intends to purchase the bid bond by the highest bidder's bid price

On the other hand, it cannot be said that the co-owner who submitted the preferential purchase report prior to the bidding date submitted the bid list by participating in the bidding on the bidding date, and the preferential purchase right can not be deemed to have been waived merely

B. Nevertheless, the court below held that the court below did not have a duty to confirm whether the execution officer provided a preferential bid bond to the re-appellant because it concluded that the Re-appellant's preferential bid declaration as co-owner's co-owner's co-owner's preferential bid declaration is null and void, and there was an error of law by misunderstanding legal principles as to co-owner's preferential bid offer (On the other hand, the court below recognized that the execution officer held Non-party 2 as the highest price bidder and returned bid bond offered by the non-party 1 as a general bidder to the non-party 1, the re-appellant and his agent did not raise any special objection. It is hard to accept in light of the empirical rule that the re-appellant, who submitted a preferential bid declaration prior to 30 minutes prior to the commencement of the bid date and offered bid bond as a general bidder, and gave up the opportunity for preferential purchase by himself as

The grounds of re-appeal assigning this error are with merit.

3. Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Yoon Jae-sik (Presiding Justice)