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Auction application by lien holders and legal theory of extinction principle

  • DONG-A LAW REVIEW
  • 2013, (58), pp.509-539
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

choo sin young 1

1전북대학교

Accredited

ABSTRACT

Previous precedents and theory has to treat alike formal auction in the auction application by lien holders. For this reason, this auction process not to extinct lien and buyer take over the lien. Judgment of the original court ruled that the secure in auction application by lien holders was impossible. Procedure of exercise of security right and Procedure of compulsory auction has to collect debts. But this judgment ruled that the lien to extinct in the procedure of auction application by lien holders. this judgment have adopted principle of takeover. The Supreme Court announced that Civil Execution Act §91 ② ③, §268 regulated the principle of extinction, Civil Code §322 ① regulated the auction application by lien holders, buyers has precarious position by principle of takeover, lien holders may be educationally disadvantaged. I insists that the firstly, the Civil Execution Act not regulated the formal auction in the auction application by lien holders. the secondly, Civil Code §322 ① regulated the collect debt by auction application by lien holders, in other word principle of takeover in the auction application by lien holders violated the principle of legislation. third, lien is identical to that of the other real rights granted by way of security.

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