[강제집행정지결정][공1987.5.1.(799),620]
Whether or not there exists res judicata effect on the decision to temporarily suspend compulsory execution pursuant to Articles 474 and 473 of the Civil Procedure Act
Since a trial on a temporary suspension of compulsory execution under Articles 474 and 473 of the Civil Procedure Act becomes a provisional determination and conclusive, res judicata does not take place even if the same becomes final and conclusive. Therefore, there is no reason not to prohibit the applicant who was rejected one request again or the person who was rendered a decision of partial suspension from filing an application for a decision different from the scope by asserting a change in circumstances thereafter, and in such a case, the court may make a new decision of suspension according to the process of hearing and change the contents thereof.
Articles 474, 473, and 202 of the Civil Procedure Act
Special Appellant 1 et al.
Daegu High Court Order 86Ka235 dated October 27, 1986
The special appeal is dismissed.
Even in a case where a trial on the temporary suspension of compulsory execution under Articles 474 and 473 of the Civil Procedure Act becomes final and conclusive merely because it is a provisional one, the res judicata does not take place, so there is no reason to prohibit the applicant who has rejected the request once again or the person who has received the decision to suspend part of the case, from filing an application for a decision different from the scope by asserting a change in circumstances after the request, and in such a case, the court may make a new decision of suspension according to the process of hearing and may modify the contents thereof.
Therefore, the court below's order cannot be viewed as a violation of the same law as the theory of lawsuit against the part which was not suspended by the decision of the first instance court of lawsuit, and it cannot be viewed as a ground for misunderstanding the original decision in different opinions, and it cannot be accepted as it is without merit.
Therefore, the special appeal of this case is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Dal-sik (Presiding Justice)