[강제집행정지][공2004.10.15.(212),1639]
[1] Whether an application to suspend compulsory execution is legitimate in a case where a lawsuit of demurrer against a claim is not filed with respect to compulsory execution based on a final and conclusive judgment or executive title with the same effect (negative)
[2] Whether the auction procedure can be suspended by the general provisional disposition procedure (negative)
[1] Suspension of compulsory execution based on a final and conclusive judgment or executive title with the same effect can only be permitted under the laws and regulations concerning compulsory execution, and it is not permitted to suspend compulsory execution by means of a general provisional disposition without being subject to such provisions. Provisional disposition as to compulsory execution under Article 46(2) of the Civil Execution Act requires that a lawsuit of objection against the claim is pending, and an application for suspension of execution filed is unlawful, notwithstanding the lack of such requirements for suspension of execution.
[2] Even in cases where an action of demurrer against a debt is brought by the mutatis mutandis application of Article 44 of the Civil Execution Act by disputing the existence of a right to request a voluntary auction, it may only be suspended by an order to suspend compulsory execution under Article 46 (2) of the same Act, and the procedure of voluntary auction shall not be suspended by the general provisional disposition procedure.
[1] Articles 44 and 46(2) of the Civil Execution Act / [2] Articles 44, 46(2), and 275 of the Civil Execution Act
[1] Supreme Court Order 86Da76 dated May 30, 1986 (Gong1986, 867), Supreme Court Order 2003Da74 dated September 8, 2003 (Gong2003Ha, 2145) / [2] Supreme Court Order 92Da35 dated January 20, 193 (Gong193Sang, 1053)
In-depth (Attorney Park Jong-hun, Counsel for the defendant-appellant)
Respondent (Appointed Party) 1 and one other
Respondent 3
All of the applications for suspending compulsory execution of this case are dismissed.
The ground for the instant application was that the respondent 1 and the respondent 2 obtained a decision of compulsory commencement of auction on September 18, 200 as the Respondent's District Court Decision 2001Ma51506 decided Sep. 18, 200. The Respondent 3 obtained a decision of compulsory commencement of auction on September 24, 200 as the Respondent 52172 case at the same court, which is the Gyeonggi-gun, Gyeonggi-gun, the real estate subject to the execution of the decision of voluntary commencement of auction on September 24, 200. The Claimant filed a lawsuit of compulsory commencement of auction on November 5, 1998 and December 22, 1998, and the Claimant did not receive a separate decision of the 100,000,000 won (hereinafter referred to as the 106,000,0000 won) to cancel the above auction procedure as the 106,000,0000 won.
The suspension of compulsory execution based on a final and conclusive judgment or executive title with the same effect may be limited to cases where the relevant provisions exist in the laws and regulations concerning compulsory execution, and it is not allowed to suspend compulsory execution by means of a general provisional disposition without being subject to such provisions. Provisional disposition with respect to compulsory execution under Article 46(2) of the Civil Execution Act requires that an objection against a claim is pending, and an application for suspension of execution filed is unlawful, despite the lack of such requirements for suspension of execution. In addition, even in cases where a lawsuit on an objection to the obligation is filed by the mutatis mutandis application of Article 44 of the Civil Execution Act under Article 275 of the same Act, even in cases where an action on an objection to the obligation is brought by the mutatis mutandis application of Article 44 of the same Act under Article 275 of the same Act, it may be suspended by being ordered to suspend compulsory execution under Article 46(2) of the same Act, and the procedure for voluntary auction shall not be suspended by the general provisional disposition procedure (see Supreme Court Order 86Da76, May 30, 1983, 2008).
The application for the suspension of compulsory execution of this case does not have any provision relating to the enforcement under the Civil Execution Act, and there is no room to apply mutatis mutandis the objection to the claim for the cancellation of the right to collateral security, or the provision of the lawsuit relating to the debt. Therefore, any part of the application can be seen as unlawful.
Therefore, all of the applications for the suspension of compulsory execution of this case are dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-dam (Presiding Justice)