채무자 소유 아닌 부동산의 경매

Abstract

If real estate that is not owned by the debtor was sold at an auction anddistributed to the creditors, and such circumstances are later revealed, the judgmentson how to compensate the buyer’s damage contradict each other. Some judgmentssay that the creditor who received the dividend must return it as an unjustenrichment, while other judgments say that Articles 578 and 570 of the Civil Codeare applied, so that the debtor and the creditor who has received the dividend areliable for Liability for Warranty. At the root of this problem exists the question ofwhether the auction procedure is invalid when real estate that is not owned by thedebtor is auctioned. Whether the auction procedure is invalid or not affects not onlydebtors, creditors, and buyers, but also mortgage holders, and tenants who have aninterest in the target real estate. The auction is a procedure in which the state exerts public power at the requestof the creditor, takes the right to dispose of the property from the debtor, leads thesale, and distributes the sale price to the creditor. In the auction procedure, it isdifficult to deny that a legal relationship similar to a sale contract is formed by thecourt’s acception to the offer by the highest bidder. Therefore, in Article 578 of theCivil Code, the debtor is recognized to be liable for warrant liability. However, Ithink that this liability should be limited to that only when the auction procedure isvalid. This is because the auction procedure should be considered invalid if thepurchaser’s object acquisition was impossible from the beginning because the objectof sale itself was not owned by the debtor.