[채권압류및전부명령][공2004.9.15.(210),1507]
In cases where a copy of the judgment of the appellate court revoking the judgment on which the appellant has declared a provisional execution on the basis of which the appellant had made in the appellate trial on the attachment and assignment order, the measures to be taken by the appellate court
Since the original copy of the judgment of the appellate court revoking a judgment on which a provisional execution has been declared, which forms the basis of a seizure and assignment order, falls under the documents of cancellation of execution as stipulated in Article 49 subparagraph 1 of the Civil Execution Act, the appellate court, in case where the appellant submitted a copy of the judgment of the appellate court revoking the judgment of revocation of a provisional execution in the appellate trial as to a seizure and assignment order of claims, shall have the appellant submit the original copy thereof, and shall accept the immediate appeal and revoke
Article 49 subparagraph 1 of the Civil Execution Act, Articles 50 (1) and 229 (6) of the Civil Execution Act
Supreme Court Order 99Ma117, 118 dated August 27, 1999 (Gong1999Ha, 2160) Supreme Court Order 2003Ma1492 dated January 29, 2004
Re-appellant
Seoul District Court Order 2003Ra172 dated November 13, 2003
The order of the court below shall be reversed, and the case shall be remanded to the Panel Division of Suwon District Court.
1. On August 1, 2003, based on the judgment of the court of the first instance rendered a provisional execution as to the re-appellant of Youngjin Chemical Co., Ltd. on August 1, 2003, the court below rejected the re-appellant's assertion that the judgment of the court of first instance issued a claim seizure and assignment order against the re-appellant's claim in the Republic of Korea, and that the judgment of provisional execution was cancelled at the appellate court. In determining a claim seizure and assignment order, the court of first instance shall examine and determine the requirements of compulsory execution such as delivery of enforcement title, etc., the existence of a seizure order prior to compulsory execution, the whole preservation claim, etc., and the reason why the execution claim is likely to be extinguished or extinguished is not a ground for immediate appeal, while the judgment of the court of first instance rendered a provisional execution with the declaration of provisional execution, and maintained the first instance court's order of seizure and assignment.
2. However, it is difficult to accept the above determination by the court below for the following reasons.
The record reveals that the Re-Appellant filed an immediate appeal and submitted a copy of the judgment of the appellate court that revoked the judgment of the court of first instance that rendered a declaration of provisional execution after the Re-Appellant filed an immediate appeal. Thus, the original judgment of the appellate court that revoked the judgment of provisional execution based on the judgment of the court that rendered a declaration of provisional execution based on the attachment and assignment order of this case constitutes a document of revocation of execution under Article 49 subparagraph 1 of the Civil Execution Act. In such a case, the court below erred by misapprehending the legal principles as to the measure taken by the appellate court in the event the execution was submitted at the appellate court, which affected the judgment (see, e.g., Supreme Court Order 9Ma17, 118, Aug. 27, 1999; Supreme Court Order 9Ma117, 118, 2003Ma1492, Jan. 29, 204).
3. Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition.
Justices Jack-dam (Presiding Justice)