[1] The meaning of "sale which designates the quantity" under Article 574 of the Civil Code

[2] Whether the auction court's voluntary auction on the land can be seen as "sale to designate the quantity" (negative)

[1] The "sale and purchase" as stipulated in Article 574 of the Civil Code refers to the case where the parties set the price based on the volume at the time that the specific goods, which are the object of the sale and purchase, have a certain quantity. Thus, even if the object is specified according to the area on the registry, in the sale and purchase of land, if the parties assessed the designated area as a whole even if it was specific according to the area on the registry, and the area calculated by the area was merely one standard, and it was a measure to specify the land between the parties and to determine the price, it cannot be said that the designated quantity was a sale

[2] In general, in a voluntary auction for the exercise of a security right, it is nothing more than a method to indicate the area on the register of land for auction purpose, which is only a method to specify and indicate the land. In determining the minimum auction price, even if the appraiser considered the price calculated by multiplying the value on the per unit area by the area on the public register, it is merely a means to determine the price of the whole land. Thus, barring any special circumstance, it shall not be deemed as a sale to designate the quantity as stipulated in Article 574 of the Civil Act.

[1] Article 574 of the Civil Act / [2] Articles 572 and 574 of the Civil Act, Article 615 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see Article 97 (1) of the current Civil Execution Act), and Article 728 (see Article 268 of the current Civil Execution Act)

[1] [2] Supreme Court Decision 89Meu7266 delivered on May 8, 1990 (Gong1990, 1242) Supreme Court Decision 90Da15433 delivered on April 9, 1991 (Gong191, 1346)

Plaintiff (Attorney Shin Sung-sung et al., Counsel for plaintiff-appellant)

Seoul High Court Decision 201Na1448 delivered on May 2, 2012

Daegu High Court Decision 2002Na2479 delivered on October 9, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The "sale and purchase" stipulated in Article 574 of the Civil Code refers to the case where the parties have set the price based on the volume of the specific goods which are the object of sale and purchase at the time of holding a certain quantity. Thus, even if the area on the registry is specified by the area on the registry, in the sale and purchase of land, the parties have assessed the specific area as a whole even if it was determined by the area on the registry, and if it is deemed that the area was merely one standard, it was a means to specify the land between the parties and determine the price, it shall not be the sale and purchase designated by the parties (see Supreme Court Decision 90Da15433 delivered on April 9, 191, 191, etc.). In general, in the voluntary auction for exercising the security right, it is not only a method to indicate the area on the registry which is the object of sale by specifying the land, and even if the minimum auction price was calculated by multiplying the value on the registry by the area on the basis of the unit area, it shall not be deemed a sale and sale price of land.

The court below rejected the plaintiff's assertion that the defendant who is an auction creditor is liable to return part of the amount distributed to the plaintiff pursuant to Articles 578 and 574 of the Civil Act, since the real estate auction procedure of Daegu District Court 2000 Ma11683 determined the price of the site of this case as the lowest successful bid price by calculating the usual unit price, and the plaintiff participated in the auction as an important standard and received the successful bid of the land and building of this case. Thus, the above auction falls under the sale designated by nature. However, since the actual unit area of the site of this case among the objects of auction falls short of 49.587mm2, which is less than 327m2, which is the area indicated in the registry, the real unit area of the site of this case is less than 49.587m2.

The allegation in the grounds of appeal that there was an error of misapprehending the legal principles as to sale and purchase which quantity was designated by the lower judgment is not acceptable.

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

Justices Song Jin-hun (Presiding Justice)