부동산 경매에 있어서 부합물, 종물, 제시외 건물의 적정한 처리방안

The purpose of this essay is to explain practical problems in handling adjuncts, appurtenances and unregistered parts of a building in an estate auction, and to suggest legal methods for solving them appropriately. One of the challenges in an estate auction is how to judge whether the ancillary property under dispute is an adjunct or an appurtenance. If the ancillary property under dispute cannot be separated without damaging the principal property or incurring excessive expense for separation, it can be defined as an adjunct. When the court needs to judge whether the ancillary property is an appurtenance or not, the court is advised to identify the principal property and consider whether the ancillary property provides economic utility to the principal property. Meanwhile, an unregistered part of a building can be an adjunct, appurtenance or independent object for ownership. To be declared as an independent object, it should have independence from the principal building in terms of structure and utilization. If the ancillary property is found to be an adjunct or an appurtenance, a successful bidder in the auction of the principal property can claim ownership of it, and the mortgagee can claim preferred dividend from the sale of it. The ancillary property as an adjunct or an appurtenance is the extra object in the auction of the principal property. Therefore, the court is advised to issue an assessment order for evaluating the price of it, and the price of it should be considered in the calculation of the minimum price. Also, it should be recorded in the sale specifications. The sale of it by the owner can be nullified because the disposal was against the effect of the seizure order on the principal property. However, the independent object, which means that the ancillary property is found not to be an adjunct nor an appurtenance, is not an object of an auction of the principal property, and therefore it should not be dealt with in the process of the auction of the main property nor be recorded in the sales specifications. In addition, a successful bidder in the auction of the principal property cannot claim the ownership of the independent object. Recently, the Korean Supreme Court rendered a judgment that even though the ancillary property under dispute (e. g. the essential facilities such as elevators, generators and electrical equipments) has the nature of an appurtenance, the successful bidder in the auction of the principal property cannot claim ownership of the ancillary property through bona fide acquisition since the principal property owner does not gain ownership of the ancillary property. The judgment can be criticized on the grounds that the judgment might misinterpret the meaning of the Article 100 of the Korean Civil Code, ② that it might fail to correspond with the common notion that the acquisition of the main property (eg. building) entails the ownership of the essential facilities for building, and ③ that it might bring about another unnecessary dispute. Following the judgment, the court might need to improve auction practice to ensure that the ancillary property, which has the nature of an appurtenance, should be recorded in the sales specifications and the appraiser report. By doing so, the successful bidder in the auction of the principal property can claim ownership of the ancillary property through bona fide acquisition. Such an improvement in auction practice can enhance the credibility of the auction process and protect the successful bidder's reasonable expectation.