담보권실행경매의 공신력 제한적 부재 상황에서 경매매수인의 합리적 지위 – 공정성, 투명성, 자동화･정보화 시각을 중심으로 –

초록

In compulsory auction procedures, once the decision permitting the sale becomes final, the auction purchaser is granted public reliance, thereby acquiring ownership of the property in a stable and secure manner. By contrast, in foreclosure auction procedures for the enforcement of security interests, the doctrine of public reliance may be denied on the basis of defects inherent in the security interest itself. As a result, the legal status of auction purchasers in such procedures tends to be relatively unstable. Due to this structural distinction, foreclosure auction procedures inherently involve a persistent risk that auction purchasers may lose ownership of the property or suffer economic losses arising from disputes concerning the existence or validity of the underlying security interest. From the perspectives of the reliability of the auction system and the safety of real estate transactions, substantial criticism has been raised regarding this issue. Nevertheless, scholarly discussion focusing on the rational legal position of auction purchasers and on overcoming their structural instability resulting from the absence or limitation of public reliance in foreclosure auction procedures—particularly within the framework of civil execution law—has remained insufficient. Accordingly, a comprehensive and systematic examination from a broader institutional perspective is urgently required. Against this backdrop, this article examines measures for strengthening the legal protection of auction purchasers in foreclosure auction procedures, structuring its analysis around the perspectives of fairness, transparency, and informatization. From the fairness-oriented perspective, this article first considers situations in which a purchaser acting in good faith and without negligence relies on information provided by courts or other public authorities but nonetheless suffers economic harm. In such cases, it is cautiously proposed—by reference to the U.S. principle of the buyer in good faith and relevant legislative approaches in Japan—that courts may bear a partial burden of proof regarding defects in the security interest. Second, the concept of public reliance in foreclosure auctions should be expanded beyond mere documentary accuracy to encompass the purchaser’s substantive and reasonable reliance. From the transparency-oriented perspective, this article notes that under German foreclosure auction law, even where certain defects exist in the auctioned property, a successful bidder who relies on the land register is protected through original acquisition of ownership, a doctrine that demonstrates a degree of rationality. Germany’s strong land registration system and robust recognition of public reliance may therefore serve as an important reference point for improving domestic auction procedures. Furthermore, the instability of purchasers’ legal status resulting from inaccurate or misleading information in auction property descriptions is examined. In this regard, Japan’s mandatory pre-verification system for auction property descriptions conducted by certified appraisers is analyzed, and the introduction of a similar advanced pre-verification system (tentatively titled) tailored to domestic execution procedures and practice is proposed. When examining reasonable protection measures for buyers from the perspective of automation and informatization, first, when examining the introduction of an AI real estate auction information integration, verification, and automation system, from the perspective of a prospective buyer, the so-called three sets of essential documents, i) sale item specifications, ii) current status survey, iii) appraisal report, and iv) copy of the register, and v) various information in various public notices related to these essential documents, can be verified and synchronized in real time and automatically in this system, so this AI system is reasonable in the first place. Third, when an AI real estate auction information integration, verification, and automation system is established, it can protect good-faith and non-negligent buyers, so this AI system is reasonable in this respect as well. Fourth, the introduction of an AI real estate auction information integration, verification, and automation system carries the risk of personal information exposure. Therefore, it is reasonable to keep explicit personal information contained in various auction practice documents confidential to an unspecified number of people in principle, and to allow active parties to view the personal information contained in the auction practice documents after going through authentication procedures. Fifth, the AI ​​real estate auction information integration, verification, and automation system carries the risk of personal information exposure and leakage in the event of successful hacking due to external attacks. Therefore, the introduction of a hybrid technology that combines data masking and rule-based NLP (Machine Learning-Based NLP) and ML (Machine Learning) into the AI ​​real estate auction information integration, verification, and automation system is more reasonable in terms of personal information protection. Sixth, the introduction of a hybrid technology that combines data masking and rule-based NLP (Machine Learning-Based NLP) and ML (Machine Learning) into the AI ​​real estate auction information integration, verification, and automation system is reasonable in that it prevents buyers from suffering damages due to already expired collateral.

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