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Protecting Creditors in Sectioned Buildings with Lost Independent Boundaries - Precedents for Auctions and Forced Bankruptcy -

  • Korea Real Estate Review
  • 2024, 34(2), pp.73-83
  • DOI : 10.35136/krer.34.2.5
  • Publisher : korea real estate research institute
  • Research Area : Social Science > Law > Law of Special Parts > Law of Real Estate
  • Received : April 3, 2024
  • Accepted : June 21, 2024
  • Published : June 30, 2024

Kim, Wan Jin 1,  Chang Gyu Choi 1

1한양대학교

Accredited

ABSTRACT

Our Constitution stipulates that all property rights that have economic value are guaranteed under public and private law. Nevertheless, the current Civil Execution Act has institutional shortcomings in safeguarding the interests of creditors, and the auction procedures for Sectioned Buildings, for which confirming independent boundaries is challenging, tend to infringe on or damage creditors' rights. The Civil Execution Act states that for Sectioned Buildings for which verifying independent boundaries is difficult, the auction application shall be dismissed or the auction commencement decision shall be canceled, both at the application stage and after the auction commencement decision has been issued. Furthermore, it provides the option to revoke the sale approval decision even after a bid has been placed and the sale approval decision for the buyer has been finalized. There have been numerous cases in which the auction application was terminated or, despite the auction proceeding and a bid being made, the winning bidder could not acquire ownership. Due to the recent establishment of Articles 1–2 of the Condominium Act, which aim to prevent unstable situations in the ownership of Sectioned Buildings and protect people's property rights, the number of cases in which auctions have been recognized or permitted has noticeably increased. However, it is evident that auctions are not permitted in several cases. Therefore, to safeguard the property rights of creditors in cases involving Sectioned Buildings, where it is challenging to confirm independent boundaries, a forced bankruptcy system is suggested under the framework of the Debtor Rehabilitation and Bankruptcy Act. This system allows creditors to apply for a debtor's bankruptcy as a means to enforce their property rights.

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