공유자우선매수권 행사방법의 문제점과 개선방안

Abstract

Co-ownership refers to when objects are owned by several persons in accordance with stake and a single ownership belongs to several persons after divided by quantity. Co-owners will possess the stake of their own and be able to sell it independently with no relevance to other co-owners' will. Sale of stake is executed by general juristic act and by compulsory execution. In auction, the compulsory execution, other co-owners' preferential right to purchase is permitted. There are 3 ways of co-owners' executing the preferential right to purchase ; to report to the executor or to the executing court that the co-owner would execute the preferential right to purchase in advance of the date of sale by providing the deposit money to apply for purchase, to report the written preferential purchase on the date of purchase by filling in the tender offer just as general bidders do and to report the preferential purchase with the intention of purchase right after the executor's naming the highest price. In conclusion, it may be appropriate to abrogate the co-owner's preferential right to purchase to coincide with the highest price in accordance with the open competitive bid that is the intention of auction. Current system, however, does not grant more privilege to co-owners than just the preferential right. The most balanced way, out of the 3 ways of executing the preferential right to purchase, might be to report the written preferential purchase on the date of purchase by filling in the tender offer just as general bidders do. It may be appropriate to abrogate the phrase "until the date of sale" out of the Civil Execution Act, Paragraph 1 of Article 140(Co-owner's preferential right to purchase), "The co-owner can provide the warranty in accordance with the Article 113 until the date of sale and report that he/she would purchase in advance the stake of debtor at the same price as the highest reported price of purchase". It may be also appropriate to abrogate the Paragraph 1 of Article 76(Procedure of executing the co-owner's preferential right to purchase etc.), the Civil Execution Regulation, "It may be possible to report the preferential purchase in accordance with the regulation of Paragraph 1 of Article 140 of the Act until before the executor notifies the conclusion of the date of sale".