The Effectiveness of voluntary auction and claim for unfair advantage

The target judgment ruled, “If a voluntary auction based on an already extinguished collateral security right is initiated and sold, the auction is invalid and the buyer cannot acquire ownership, and the buyer may request the collection of dividends or the return of unfair gains to all creditors.” While agreeing with the conclusion of the target judgment that the auction based on the extinguished collateral security right is invalid and that the buyer can claim the return of unfair gains, the author's opinion is summarized and expressed as follows. As for the effectiveness of the auction based on the extinguished collateral security right, which is the first issue, the interpretation of the text of Article 267 of the Civil Execution Act or the purpose of the above article is to protect buyers with unstable auction status, it is reasonable to consider the auction as valid regardless of whether the expiration date of the security right is before or after the auction begins. If the buyer knows that the auction is based on the extinguished collateral security right because it is economically identical to the collateral security holder (if the buyer is malicious), as in the target judgment, the auction should be considered invalid because there is no need to protect the buyer. The second issue, if the voluntary auction is invalid, the buyer's request for the return of unfair gains should be recognized as the concept of invalidity of the entire auction process, including not only the invalidity of the substantive law that the buyer cannot acquire ownership, but also individual litigation and execution activities in the auction process. If the auction is invalid, the buyer may request the return of unfair gains, and the type of unfair gains is unfair benefit. If the legal nature of the auction is judicial trading, and especially from the buyer's point of view, the sale price paid by the buyer to the auction court would be 'payment'. The other party to the return of unfair gains requested by the buyer is a dividend creditor or a person who has received a collection or all order for the dividend creditor. This is because the beneficiary who is the counterparty to the claim for the return of unfair gains must actually be the subject of the attribution of the profit (dividend creditors, etc.).