[가처분이의][공2005.3.15.(222),396]
[1] The extent of the reasoning of the judgment on the objection against provisional disposition
[2] Whether there is an absolute ground for appeal under Article 424(1)6 of the Civil Procedure Act where the reasoning of the judgment is omitted or unclear (affirmative)
[3] The case where the court can investigate ex officio the lack of grounds for the judgment
[1] A judgment on an objection against provisional disposition shall be rendered by a judgment, and except as otherwise provided in the Civil Execution Act, the provisions of the Civil Procedure Act shall apply mutatis mutandis to the procedure for preservative disposition. Since the Civil Execution Act does not have any special provision on the reasoning of the judgment on an objection against provisional disposition, the judgment on an objection against provisional disposition shall state the grounds therefor in the judgment on an objection against provisional disposition. The reasons therefor shall indicate the judgment on the allegations by the parties and on other means of offence and defense
[2] The purpose of the law requiring the statement of the grounds for the judgment is to verify the reasonableness and objectivity of fact-finding and the selection, application and prosecution of laws and regulations conducted in the trial process in order to ensure that the decision process derived from the method of deriving the conclusion by applying laws and regulations to specific facts recognized by evidence is unreasonable or not subjective. Thus, the grounds for the judgment is to state in full the necessary decision in the process resulting from such a process so that it can clarify that the process is rational and objective, and where such a statement is omitted or unclear, it is an absolute ground for appeal under Article 424(1)6 of the Civil Procedure Act.
[3] In a case where an unlawful act of stating the grounds for a judgment omitting part of the grounds or omitting any part of the grounds for a judgment, which is identical to a failure to clarify any part of the grounds for a judgment at all, and thus it is impossible for a party to determine the legitimacy of the assertion of the violation of statutes, etc., which is alleged in the grounds for a final appeal, such grounds may be investigated and determined ex officio
[1] Articles 23(1), 286, and 301 of the Civil Execution Act (amended by Act No. 7358 of Jan. 27, 2005); Articles 208(1)4 and 208(2) of the Civil Procedure Act / [2] Articles 208(1)4 and (2), and 424(1)6 of the Civil Procedure Act / [3] Articles 134, 208(1)4 and (2), 431, and 434 of the Civil Procedure Act
Plaintiff (Law Firm Han River, Attorneys Cho Jae-soo et al., Counsel for the plaintiff-appellant)
Defendant 1 and one other (Law Firm Dan, Attorneys Park Jong-mun et al., Counsel for the defendant-appellant)
Seoul Central District Court Decision 2003Na25040 Delivered on July 2, 2004
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.
1. With respect to the existence of the right to be preserved claimed by the creditor, the lower court stated that the completion of the prescriptive acquisition on September 21, 2001 on the part of the land for which the creditor seeks the registration of ownership transfer due to the completion of the statute of limitations for possession against the debtor among the land for which the creditor seeks the registration of ownership transfer due to the completion of the statute of limitations for possession, and on the part of the land for which the creditor seeks the registration of ownership transfer on September 21, 2001, it is recognized that the prescriptive acquisition is completed on September 21, 2001. However, with respect to the remaining part of the land, the judgment of the first instance court which dismissed the creditor's application for provisional disposition (the Seoul Central District Court Decision 2003Na203 delivered on July 2, 2004, the creditor's application for provisional disposition was clearly explained within the scope of the winning part of
2. The above determination by the court below ex officio is not acceptable for the following reasons.
A judgment on an objection to a provisional disposition shall be rendered by a judgment (Articles 301 and 286 of the Civil Execution Act), except as otherwise provided in the Civil Execution Act, the provisions of the Civil Procedure Act shall apply mutatis mutandis to the procedures for preservative measures (Article 23(1) of the Civil Execution Act); and as there are no special provisions on the reasoning of the judgment on an objection to a provisional disposition under the Civil Execution Act, the judgment on an objection to a provisional disposition shall state the grounds therefor (Article 208(1)4 of the Civil Procedure Act). The reasoning of the judgment ought to be indicated to the extent that it can be recognized that the order is justifiable (Article 208(2) of the Civil Procedure Act). The purport of the law requiring entry in the grounds of the judgment is to ensure that the process of judgment based on the method of deriving the conclusion is unreasonable or subjective by applying the specific facts recognized by the court based on evidence is to verify the selection, application, reasonableness and objectivity of fact-finding and laws and regulations, and to verify objectivity and objectivity of the judgment in the said process. Therefore, the grounds for appeal No. 2002 may be stated in the same process.
The judgment of the court below citing the grounds for the judgment on the existence of the right to preserve the object of provisional disposition asserted by the creditor, but it cannot serve as the grounds for the judgment on the objection to provisional disposition. Thus, the judgment of the court below is erroneous in the misapprehension of the grounds for the judgment on the existence of the right to preserve the object of provisional disposition, and the judgment of the court below is erroneous in failing to state the grounds for the judgment, and it is equivalent to the omission of part of the grounds for the judgment or the omission of any part of the grounds for the judgment at all, but it is not possible for the parties to determine the legitimacy of the assertion, such as the violation of Acts and subordinate statutes, which is alleged as the grounds for
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jack-dam (Presiding Justice)