In case where an applicant for auction withdraws his/her application for auction when a re-auction order is issued due to the unpaid price of the successful bidder, whether the consent of the successful bidder before causing the re-auction procedure is necessary (negative)

The purport of Article 648 (4) of the Civil Procedure Act, in cases where the successful bidder pays the price, etc. by three days prior to the date of re-auction, cancellation of the re-auction order and recognition of ownership acquisition of the subject matter of sale by the former successful bidder, is that the procedure of re-auction is attributable to the failure of the former successful bidder to pay the legal price, so long as the former successful bidder intends to pay the legal price, etc. in full, it is reasonable for the successful bidder to take over the proceeds, etc. by re-auction rather than repeating the procedure of re-auction which requires time in advance. Therefore, where the former successful bidder, after issuance of the re-auction order, intends to terminate the auction procedure by withdrawal of the request for auction by the former successful bidder's own withdrawal of the legal price, the former successful bidder who failed to perform his/her duty on the original date of payment and caused the re-auction procedure does not constitute a person entitled to consent to withdrawal of the request for auction

Articles 610(2) and 648(4) of the Civil Procedure Act

[Plaintiff-Appellant] 91Ma500 decided June 9, 1992 (Gong192, 211)

Re-appellant

Busan District Court Order 98Ra349 dated January 6, 1999

The reappeal is dismissed.

The grounds of reappeal are examined.

In order to withdraw a request for auction after a declaration of bid under Article 610(2) of the Civil Procedure Act provides that the highest bidder and the next highest bidder shall consent to the withdrawal of the request for auction after a declaration of bid price has been filed, and Article 648(4) of the same Act provides that if the successful bidder pays the price, etc. not later than three days prior to the date of re-auction, the successful bidder shall revoke the re-auction procedure, and in this case, when the next highest bidder has obtained the decision to grant the successful bid price, the successful bidder who first paid the above amount shall acquire the right to the subject matter of sale. The purport of Article 648(4) of the same Act is to recognize the ownership of the subject matter of sale prior to the cancellation of the re-auction order, as long as the re-auction procedure results from the failure of the former successful bidder to pay the proceeds in full, it would be more appropriate to receive the proceeds, etc. by examining the first auction procedure than repeating the auction procedure requiring time, and thus, it shall not be deemed that the successful bidder fails to pay the original auction price after the second auction order after the auction order.

In this regard, the court below's decision that the plaintiff's application for auction of this case was valid without the consent of the successful bidder prior to the auction conducted on December 5, 1998 is justified, and there is no error of law such as misunderstanding of legal principles under Articles 610 (2) and 648 (4) of the Civil Procedure Act as alleged in the grounds for reappeal.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)