부동산경매절차에서 공유자우선매수권의 형평성 제고를 위한 소고

Abstract

For the efficient management and use of the entire co-owned property, the joint owner's preemption right(Article 140 of the Civil Execution Act) is recognized in the real estate auction process. However, the problem is that there are many cases where the original legislative purpose of the system is overshadowed by abuse or misuse. It mainly appears in the exercise method according to the exercise period of the preferred purchase right, that is, when the joint owner sets the highest price on the sale date, there are cases where the bidding court immediately reports the preferred purchase. The other thing is the joint owner reports the preferred purchase without providing a guarantee before the sale date to the bidding court. However, since the deadline for determining the highest price is the same in any case, Article 66 (1) of the current Civil Execution Rules was applied application or deemed as an improvement plan, and a proposal was made to determine the final buyer by making only one additional bidding in the case of the sale date. In addition, the court proposed a legislative theory that it is necessary to add and generalize the “restriction on the exercise of preferential purchase rights” as a clue to the main text of Article 76 (1) of the Civil Execution Rules, which limits the exercise of preferential purchase rights to one time with the special sale condition. After all, the joint owner's preemption right must be recognized in the principle of equity for fair price formation, from a perspective based on that the two improvement measures proposed in this paper will not particularly undermine the original legislative purpose of the system.