Plaintiff (Law Firm Tae, Attorney Park Jong-woo, Counsel for the plaintiff-appellant)

Republic of Korea and one other (Law Firm Han, Attorney Kim Won-won, Counsel for the plaintiff-appellant)

March 29, 2011

Suwon District Court Decision 2010Kadan29310 Decided February 15, 2011

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The plaintiff shall pay to the defendant Republic of Korea 34,906,520 won, to the defendant Seoul Special Metropolitan City 5,266,610 won, and to each of the above amounts, 5% per annum from December 13, 2005 to the delivery date of the complaint of this case, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, it is citing it in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The party's assertion and judgment

A. The plaintiff acquired the ownership of the real estate in this case after the execution of the compulsory auction by the provisional seizure that had been completed for the real estate in this case. Thus, the public auction in this case became null and void, or the plaintiff cancelled the public auction in this case pursuant to the provisions of Articles 576 and 578 of the Civil Act, and the public auction in this case became retroactively null and void. The non-party 1, the debtor, is insolvent. The defendants, without any legal ground, obtained profits equivalent to each of the shares in the public auction in this case, and thereby caused damage to the plaintiff equivalent to that of the above amount, and therefore the defendants are obligated to return to the plaintiff the money stated in the claim

B. The farmland sales contract without the certificate of sale and purchase of farmland under the former Farmland Act (repealed by Act No. 4817, Dec. 22, 1994; Act No. 2 subparag. 1, Article 2 of the Addenda to the Farmland Act) shall be deemed to have been in a state of ownership even if it can be effective as a bond contract, i.e., the effect of change of real rights, and such legal principle shall not be effective as a case of sale through public sale. The same applies to the case of sale under the procedure of public sale. Even if the purchaser did not obtain the certificate of sale and purchase of farmland under the former Farmland Act even if the sale and purchase of farmland was made in the procedure of public sale at the time of the enforcement of the former Farmland Reform Act, the purchaser did not acquire the ownership unless the certificate of sale and purchase of farmland under the former Farmland Reform Act or the certificate of sale of farmland under the Farmland Act (repealed by Act No. 4817, Dec. 22, 1994; Act No. 5130, Jan. 1, 299).2).

However, the public auction of this case does not immediately become null and void because the plaintiff becomes unable to acquire ownership due to a compulsory auction by provisional attachment. The legal nature of the public auction is a private sale. The "auction" under Article 578(1) and (2) of the Civil Act excludes only private auction, which is the same as the general sale. It includes not only compulsory auction under the Civil Execution Act, auction for the execution of security rights, etc., but also public auction for the execution by a state agency without asking the intention of the right holder under other Acts, such as the National Tax Collection Act and the National Tax Collection Act as an agent of the Korea Asset Management Corporation under the National Tax Collection Act. If a purchaser of real estate subject to provisional attachment loses ownership due to compulsory execution based on provisional attachment, it is similar to the sale of real estate acquired by the purchaser due to the exercise of mortgage or chonsegwon established for the purpose of sale. Thus, Article 576(1) and (3) of the Civil Act concerning the seller's warranty liability in this case can not be applied mutatis mutandis, and even if the plaintiff fails to acquire ownership after the auction, it can only be held ownership after the auction.

C. The Defendants asserted that, as long as the Plaintiff acquired the burden of provisional seizure established in the instant real estate during the instant public sale procedure, the Plaintiff was exempted from the above liability for warranty, or waived it. However, the Defendants' assertion that it is difficult to see that the Plaintiff exempted or renounced the above liability for warranty on the ground that there is no other evidence to acknowledge it.

D. Furthermore, the fact that the Plaintiff became unable to acquire ownership due to a compulsory auction by provisional attachment after the Plaintiff purchased the instant real property through the instant public auction is as seen earlier. The fact that the Plaintiff declared the seller to cancel the instant public auction against the seller at the time of the Plaintiff’s high government district court senior 2009Kadan43020 litigation proceeding, which led to the seller’s declaration of intention to cancel the instant public auction, is recognized as either dispute between the parties or by the purport of the entire pleadings. Thus, the instant public auction was lawfully rescinded by the said declaration of intention

Meanwhile, according to Article 578(2) of the Civil Act, where an auction, etc. is cancelled by a successful bidder, the successful bidder may request the creditor who received the payment to return all or part of the price to the successful bidder when there is no debtor's financial ability. According to the court's Eunpyeong-gu Office, each inquiry into the Ministry of Land, Transport and Maritime Affairs and the Ministry of Land, Transport and Maritime Affairs, the court's Seodaemun-gu, the Postal Service Information Development Team, the National Bank, the Korea Exchange Bank, the IBK Bank, the Han Bank, the Korea National Agricultural Cooperative Federation, the Korea National Agricultural Cooperative Federation, the National Tax Service, and the National Tax Service, taking into account the results of each order to submit documents and arguments against the debtor, there is no real estate owned by the non-party 1, the debtor, and the non-party 1 did not have any financial transaction other than 6,000 financial transactions on August 1, 205 to October 31, 2005, the income of the non-party 1 to July 838, 2008.

E. Therefore, Defendant Republic of Korea is obligated to pay to the Plaintiff the amount of KRW 34,906,520 and delay damages calculated at the rate of 20% per annum under the Civil Act from August 10, 2010, which is the day following the day when the complaint of this case was served on the above defendant; Defendant Seoul Special Metropolitan City from October 7, 2010, the day following the day when the complaint of this case was served on the above defendant; and from February 15, 2011, which is the day when the complaint of this case was sentenced to the first instance judgment, to the extent of its performance obligation until February 15, 201; thus, Defendant Republic of Korea is obligated to pay each of the above damages for delay calculated at the rate of 34,906,520 as well as 20% per annum under the Civil Execution Act from the next day until the day of complete payment (Article 748 and Article 749 of the Civil Act). Although Defendant did not have any provision for confiscation of the above real estate by the deadline for the Plaintiff to pay the above 2 of auction.

3. Conclusion

Therefore, the judgment of the court of first instance is justified, and the appeal by the defendants is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jin-tae (Presiding Judge)