공유자 우선매수권의 행사 및 그 악용에 대한 대처방안

Abstract

The right of first refusal by co-tenants, which is set forth under section 140 of the Civil Judgment Enforcement Law, gives priority to a co-owner in foreclosure sales, to the extent that the co-tenant is willing to match the proposed foreclosure purchase amount. It is designed to minimize the inconvenience and the disagreements to be caused by forcing a new co-owner upon other co-owners. However, there emerged situations where a co-owner abused this right by simply issuing an intent to excercise this right before the foreclosure date, thereby causing other participants to be reluctant in their efforts. The co-owner then chose not to pay the deposit if there were no other participants, nullifying the foreclosure event. After the minimum amount dropped as a result of this, and a new applicant showed up, he or she then finally exercised the right by making a deposit payment. Despite this sort of abuse, there had been no counter-measures in practice until the case discussed in this paper. The case at issue is therefore significant as it holds that such co-owners are deemed “persons who have obstructed the process of foreclosure” and disqualified to participate in the foreclosure. It is regretful that this holding does not contain detailed guidelines as to how many times of such abuses will disqualify such co-owners. In my opinion, we need to gather data on this issue in order to come up with a detailed guideline, and the following shall be adopted in practice in preparation of the same. If a co-owner files his intention to purchase and there are no other applicants, the enforcement officer shall designate the co-owner as the final applicant and give him the chance to make a deposit. If the co-owner fails to pay the deposit, such failure must be recorded on the foreclosure log. If the co-owner repeats the same step.