不動産競賣에 있어서 賣却條件과 買受人保護 = Selling Conditions and Protection for Sellers in Auction of Real Estate

부동산 경매의 매각조건과 매수인 보호 방안을 연구했다.

1. Object specification system has introduced auction object specification system (see Article 617-2) together with status survey system by an executor (see Article 603-2). The system permits an executive court make out auction object specification and keeps its copy to allow common people to inspect it and to identify auction object, and publicly announces its status and right relations to let would-be buyer get easily necessary information of auction object. As a result, the system shall prevent him from suffering from unexpected losses and damages.

The auction object specification, however, is no more than a document containing a court's recognition to belong to an activity of fact, so that it does not decide selling conditions and has no influence on right relations of substantial laws and cannot be admitted of public confidence effects. In addition, because of features of auction procedures as well as limitation of functions of auction courts, the courts cannot be expected to fill out contents of the auction object specification objectively, correctly and in detail. 2.

Under the law now in force, information-opening system regarding selling conditions has some problems because of insufficient public notification regarding selling conditions and needs of subsequent relief in favor of a buyer. First, despite making efforts to meet description of object specification, there exists technical and political measure limitation. Second, there is a delay between status survey and evaluation time and preparation time of object specification. During such a delay, execution procedure cannot take a proper action against changes of circumstances. Third, the one, who wants to buy, has not enough capabilities making decision of description etc of object specification.

Then, the lowest auction application value system in Germany has been made out based on public trust regarding real estate registration through real inspection right, so that its public trust has reached a considerable level. But where it has a deficiency due to extinction of rights, successful bidder shall be exceptionally given additional payment obligation within an auction procedure, so that it follows legislation theory maintaining auction permission decision. Therefore, the lowest auction application value system in Germany is to be reviewed whether it can be introduced from the viewpoint of legislation theory.

Preparation of object specification in Korea has its own fundamental limitation to be difficult to understand real relations of rights exactly. First of all, therefore, improvement ways of object specification itself in the nation shall be as follows: First, government officials in charge of registration shall be given actual inspection rights to reform existing registration system enough to meet substantial relations. And German style of the lowest auction application value system (namely, an integrated system of written evaluation in the nation, object specification and the lowest auction application value) shall be checked to decide whether it can be introduced to the nation.

Second, where existing registration system is to be preserved at the level of conventional public notification power, an executor shall be firstly given not only inspection rights regarding real substantial relations but also positive survey obligations as well. To support such things, a rightful person shall be given positive reporting obligation in legislative way to prevent omission of substantial right relations starting from status inspection stage of the executor. On the other hand, the interested parties shall be permitted to report changes of right relations until making out an object specification. 3.

Regarding needs of relief, post-relief should be considered to let a variety of bidders participate in bidding, because improvement of description of object description has its own limitation. Relief method by cancellation application of selling permit decision shall follow needs of expanded and analogical interpretation of Article 639. Cancellation application of Article 639 may be applied to relief method on selling object of a buyer. Based on judicial precedents, Article 639 may be analogically applied as a means that can relieve buyers from errors of publicly announced selling conditions.

Needs of expanded and analogical interpretation of Article 639 may produce problems due to changed circumstance after making out an object specification, in other words, difference between preparation time of object specification and selling time. While an object in target is physically damaged due to such a time difference, "changes of right relations" may occur to produce a significant change of prices. An executive court, however, cannot adjust such a matter immediately. Then, correction method of such a thing may produce a great problem. Then, interested persons cannot positively raise claim through executive claims.

Therefore, there may exist no choice but to appeal to authority of courts. If protection of interests of buyers would be emphasized to apply Article 639 analogically and to let buyers raise claim of dividend by joining dividend, interest balance for adjustment of interests between interested parties may be overlooked. Rather, buyers may be allowed to claim not only reduction of money value but also dividend interests as well to cause diseconomy of lawsuit. Article 639 may be applied to only permit or non-permit application based on auctioning, where a real estate is damaged.

As a result, the article has no relation with claim of reduction of money value, and is mostly a compelled regulation considering that all of regulations of compulsory execution are conducted by national organizations to sell publicly. Analogical interpretation based on someone's will is likely to damage legal stability greatly in solving detailed subjects, so that an expression of adaptation may be better than analogical interpretation of the article in order to so

<目次> 第1章 序論 제1절 硏究의 目的 = 1 제2절 硏究의 範圍 및 方法 = 4 第2章不動産競賣에 있어서 賣却條件 = 5 제1절 不動産執行의 意義 및 節次 = 5 1. 不動産執行의 意義와 節次 = 5 2. 執行機關 = 8 (1) 執行法院 = 8 (2) 受訴法院 = 11 (3) 집행관 = 12 3. 執行對象으로서의 不動産과 執行類型 = 13 제2절 賣却條件의 內容 = 17 1. 賣却條件의 意義와 種類 = 17 (1) 法定賣却條件 = 18 (2) 특별매각조건 = 33 2. 賣却條件의 判斷節次 = 37 3. 占有關係의 調査 = 39 (1) 점유관계의 유형 = 39 (2) 조사결과의 물건명세서상의 기재 = 43 4. 物件明細書 = 46 (1) 제도의 취지 = 46 (2) 물건명세서의 작성 = 47 5. 調査結果와 賣却條件의 公示 = 48 (1) 調査結果의 公示 = 48 (2) 賣却條件의 公示 = 51 第3章不動産競賣에 있어서 賣却條件의 問題點 = 53 제1절 問題의 所在 = 53 제2절 賣却許可決定과 取消申請 = 55 1. 民訴法 제639조 제1항의 趣旨와 實務의 動向 = 55 2. 民訴法 제639조 제1항과 관련한 判例의 類型的 檢討 = 59 제3절 賣却許可決定과 卽時抗告 = 76 1. 最高價買受申請人의 卽時抗告 = 76 2. 抵當權者·所有權者가 신청한 卽時抗告 = 82 제4절 物件明細書作成時의 現況把握의 誤謬 = 88 1. 地積의 誤謬 = 89 2. 敷地利用權 = 92 3. 土地賃貸借契約의 終了 = 96 4. 不動産價格에 影響이 있는 그 밖의 事由 = 96 제5절 物件明細書作成後의 事情變更 = 100 1. 現