경매절차에 있어서 담보책임의 일환인대금감액 신청과 이를 둘러싼 집행실무상의 제문제― 결정에 대한 불복절차를 중심으로 -

Judicial clerks have been part of the judicial landscape in Korea for overeight years since December 2005 and are, in practice, increasingly becomingcentral players in enforcement procedures with the enforcing courts' newdivision of labor. However, there are undeniable overlaps and confusiondue to the bifurcation of duties between judges and judicial clerks, as vividlyexemplified by the widely discussed issues surrounding the decision toreduce auction price. The authority to reduce auction price lies primarily with judicial clerks,as indirectly confirmed by prior cases. There has been a disagreement amongpractitioners on whether the proper means to appeal a decision to reduceauction price is an appeal against an enforcement measure or an immediateappeal, with the latter view prevailing. The Supreme Court also seems tosupport the immediate appeal view theory with its Decision 2011Ma1426delivered on August 10, 2011. However, the Court has never elaboratedon the theoretical basis for its conclusion. Some of the Appeals Courtdecisions of late appear to be based on the view that the decision to reduceauction price is a partial revocation of the decision to authorize the sale,which supports the immediate appeal position from a civil enforcementpoint of view. This is the only interpretation congruent with thenon-suspension of enforcement principle; however, those problems that mayarise when proceeding with the enforcement after allowing the reductionof auction price (of which a case in the Cheonan Branch of the DaejeonDistrict Court is an example) will require resolution by other means, suchas making use of an order to provide collateral. On the other hand, it doesnot follow as a logical inevitability that an immediate appeal should berecognized as a means to appeal a decision to disallow the reduction ofauction price, due to the reality that applications to reduce auction priceare frequently used to stall auctions.