[강제집행정지결정에대한특별항고][집21(2)민,080]
Where an appeal is filed against a judgment which has been declared as provisional execution, whether the records of trial may be applied for a suspension of compulsory execution against a part of the judgment after receiving an order to suspend compulsory execution from the first instance court due to the existence of the records of trial in the first instance court, and the lower court may again order the suspension of compulsory execution against the remaining part upon receiving an application for suspension from the parties.
In the event of an appeal against a judgment with a declaration of provisional execution, it is not a violation of the law to order the suspension of compulsory execution against the whole amount including the part of the order of suspension at the first instance court upon request of the parties, which is the relation in the first instance court and the record of trial, and which is the relation in the first instance court, after receiving the record of trial from the appellate court, and then receiving
Attorney Kim Jae-jin, Counsel for the special appellant
Seoul High Court Decision 72Ka127 delivered on June 16, 1972
The special appeal is dismissed.
With respect to the special grounds for appeal by a special appellant,
According to the provisions of Articles 473 and 474 of the Civil Procedure Act, where an appeal is filed against a judgment with a declaration of provisional execution, it shall not be filed against the judgment with respect to the temporary suspension of compulsory execution. However, this judgment is merely a provisional disposition, and the court may make a new decision of suspension according to the process of hearing on the case at issue, and may modify the contents thereof, and may also revoke the decision of temporary suspension at king. As in this case, an appeal is filed in principle, but the appellate court shall make a decision of whether to order the suspension of compulsory execution at the first instance court with respect to the relationship between the court and the first instance court. However, since the court has requested the suspension of compulsory execution based on the judgment with a declaration of provisional execution and the court has ordered the suspension of compulsory execution only with respect to the portion 500,000 won of the amount ordered to be paid, the court may not again request the suspension of compulsory execution at the first instance court with respect to the part above 500,000 won of the amount ordered to be paid, and thus the court may not request to suspend compulsory execution at the first instance court.
Therefore, it is so decided as per Disposition by the assent of all participating judges pursuant to Article 421 of the Civil Procedure Act.
Justices Rin- Port (Presiding Justice)