The provisions on the auction of joint ownership shares, and preemptionrights of joint owners in real estate, are rules unique to Korea that extractsacrifices from other declared buyers, in that consultation with other jointowners is required for the use and management of the co-owned property,and close personal relationships between the joint owners are otherwisemandated.In relation to the exercise of the preemption right, there are numerousreported cases where a joint owner deflates the purchase price by makingother declared buyers reluctant to bid. For instance this joint owner mightdeclare the preemption right without acting on it or repeatedly declarepurchase and then withdraw the declaration, only to exercise the preemption right once the purchase price is lowered as a result of this joint owner'sbad-faith actions. There are also cases where permitting subsequent appealagainst a decision to authorize sale, based on defect of notice to a jointowner, invalidates the transfer of title to a purchaser who already paid thepurchase price.When a joint owner abuses the right of preemption, the formation ofan appropriate sales price is disrupted and ultimately the creditor and debtorsuffer monetary damage. Meanwhile, a purchaser is caught off guard, unableto acquire ownership because of defect in notice to any joint owner, andproblems of government official liability arise. This seriously underminesthe fairness and stability of enforcement procedures, not to mention thecredibility of enforcing courts.At present, more than 50 years have passed since notification to jointowner and preemption preference right were adopted on April 4, 1960.Unlike the time of their initial implementation, changes in living conditionsdue to the increasing prominence of the nuclear family mean that it hasbecome quite rare for joint owners to perceive or evaluate co-owned propertyin light of close personal relationships in the use and management of theproperty. Rather, the property is more commonly perceived as separateproperty consisting of the individual shares, or as a means of investmentThus this article examines, given the changes in social conditions andthe perception of joint ownership in terms of using and managing co-ownedproperty, whether joint owners' preemption right should be maintained asit is, what law is applicable to lawful notification to a joint owner pursuantto Article 139 (1) of the Act, and whether there are alternatives or legislativesolutions.Since there is no specific provision in the law and no direct or relevantprovision providing for similar notification or method of notification in theCivil Procedure Act, the general rule of Article 8(1) of Rules of CivilEnforcement applies to the notification to joint owners pursuant to Article139 (1), Also, since the purpose of the Civil Procedure Act in granting specialservice methods as an exception to ordinary delivery to expedite the saleprocedure shares with notification to joint owners the purpose of protectingprivate interests much like the notification of the sale date to interestedparties, the dispatch service method may also be used applying mutatismutandis the provisions for notification of sales date (Article 104 (3) ofthe Act, Article 9 of the Rules).Should the notification provision to joint owners under Article 139 (1)be maintained? Since the decision on the commencement of auction isregistered on the public registry, the enforcement officer and appraiser visitthe property for the purpose of investigating current conditions andappraising the property, and it would take at least four months from thedecision on the commencement of auction to the time appointed for makingtenders, it stands to reason that the notification to joint owners is unnecessarywhether or not the joint ownership is premised on a close personalrelationship: If the joint owners are in a personal relationship in managingthe co-owned property they would as a matter of common sense be awareof the a...
The provisions on the auction of joint ownership shares, and preemptionrights of joint owners in real estate, are rules unique to Korea that extractsacrifices from other declared buyers, in that consultation with other jointowners is required for the use and management of the co-owned property,and close personal relationships between the joint owners are otherwisemandated.In relation to the exercise of the preemption right, there are numerousreported cases where a joint owner deflates the purchase price by makingother declared buyers reluctant to bid. For instance this joint owner mightdeclare the preemption right without acting on it or repeatedly declarepurchase and then withdraw the declaration, only to exercise the preemption right once the purchase price is lowered as a result of this joint owner'sbad-faith actions. There are also cases where permitting subsequent appealagainst a decision to authorize sale, based on defect of notice to a jointowner, invalidates the transfer of title to a purchaser who already paid thepurchase price.When a joint owner abuses the right of preemption, the formation ofan appropriate sales price is disrupted and ultimately the creditor and debtorsuffer monetary damage. Meanwhile, a purchaser is caught off guard, unableto acquire ownership because of defect in notice to any joint owner, andproblems of government official liability arise. This seriously underminesthe fairness and stability of enforcement procedures, not to mention thecredibility of enforcing courts.At present, more than 50 years have passed since notification to jointowner and preemption preference right were adopted on April 4, 1960.Unlike the time of their initial implementation, changes in living conditionsdue to the increasing prominence of the nuclear family mean that it hasbecome quite rare for joint owners to perceive or evaluate co-owned propertyin light of close personal relationships in the use and management of theproperty. Rather, the property is more commonly perceived as separateproperty consisting of the individual shares, or as a means of investmentThus this article examines, given the changes in social conditions andthe perception of joint ownership in terms of using and managing co-ownedproperty, whether joint owners' preemption right should be maintained asit is, what law is applicable to lawful notification to a joint owner pursuantto Article 139 (1) of the Act, and whether there are alternatives or legislativesolutions.Since there is no specific provision in the law and no direct or relevantprovision providing for similar notification or method of notification in theCivil Procedure Act, the general rule of Article 8(1) of Rules of CivilEnforcement applies to the notification to joint owners pursuant to Article139 (1), Also, since the purpose of the Civil Procedure Act in granting specialservice methods as an exception to ordinary delivery to expedite the saleprocedure shares with notification to joint owners the purpose of protectingprivate interests much like the notification of the sale date to interestedparties, the dispatch service method may also be used applying mutatismutandis the provisions for notification of sales date (Article 104 (3) ofthe Act, Article 9 of the Rules).Should the notification provision to joint owners under Article 139 (1)be maintained? Since the decision on the commencement of auction isregistered on the public registry, the enforcement officer and appraiser visitthe property for the purpose of investigating current conditions andappraising the property, and it would take at least four months from thedecision on the commencement of auction to the time appointed for makingtenders, it stands to reason that the notification to joint owners is unnecessarywhether or not the joint ownership is premised on a close personalrelationship: If the joint owners are in a personal relationship in managingthe co-owned property they would as a matter of common sense be awareof the a...
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