[부동산강제경매][미간행]
In cases where a single judge, etc. who received a case of objection against the decision on permission to sell the judicial assistant official approves the disposition of the judicial assistant official on the ground that the objection is groundless, and orders the claimant to submit a written reason for appeal within a reasonable period specified by the order of correction, whether the appeal may be dismissed on the ground that the written reason for appeal has not been submitted to the first instance court within ten days from the date of submission of the written reason for appeal (negative)
Article 15(2) and (3) of the Civil Execution Act, Article 4(1), (4), (5), 6(6)5 and 6 of the Rules on Judicial Assistants
Supreme Court Order 2009Ma519 Dated April 10, 2009
same construction corporation
Seoul Southern District Court Order 2010Ra240 dated December 22, 2010
The order of the court below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.
The grounds of reappeal are examined.
Where a single judge, etc. handles a disposition taken by a judicial assistant judge, etc., he/she may file an objection in accordance with the procedures prescribed in Article 4 (2) through (10) of the Rules on Judicial Assistant Officials (Article 4 (1) of the Rules on Judicial Assistant Officials), and where an objection is filed in accordance with Article 4 (1) of the Rules on Judicial Assistant Officials, it is unnecessary to attach stamps, documents to provide guarantee, etc. as prescribed by the Act on the Recognition of Civil Procedure, etc. or the relevant Act (Article 4 (4) of the Rules on Judicial Assistant Officials), and Article 4 (5) of the Rules on Judicial Assistant Officials as prescribed in Article 7 (1) of the said Rules. In such cases, a single judge, etc. in receipt of an objection shall order the disposition taken by the judicial assistant before handling the objection or an objection against the disposition subject to an immediate appeal shall be deemed to have no justifiable grounds; in such cases, the period for submitting an objection shall be deemed to have been an peremptory period or immediate appeal under the relevant Act; in such cases, the period for submitting an objection shall be deemed to have no grounds for objection prescribed in accordance with Article 6 (1).
Therefore, where a single judge, etc. in receipt of a case of filing an objection against the decision on permission to sell the judicial assistant, approves the disposition of a judicial assistant on the ground that the objection is groundless, and simultaneously sets a reasonable period and orders the claimant to submit a written reason for appeal stipulated in Article 15(3) of the Civil Execution Act, if the written reason for appeal is submitted within a reasonable period specified in the order of correction, the appeal cannot be dismissed on the ground that the written reason for appeal was not submitted to the first instance court within 10 days from the date on which the written reason for appeal was submitted (see Supreme Court Order 2009Ma519, Apr. 10
According to the records, on October 26, 2010, the re-appellant submitted a written appeal to the court of first instance on November 2, 2010 as a third acquisitor to the effect that he/she raised an objection against the above disposition. The judge of the first instance court who received the case of filing an objection against the ruling of permission for sale by a judicial assistant was ordered to submit a written appeal within three days from the date he/she received the order on November 4, 2010. The above order of correction was delivered to the Re-Appellant on November 18, 2010. The re-appellant submitted a written reasons for appeal to the court of first instance on November 22, 2010, within the period of the order of correction, and on November 23, 2010, the first instance court ordered the order of correction to submit the deposit within the period of 10 days after receiving the deposit. The first instance court's order of correction after receiving the deposit from the court of first instance on November 23, 2010.
Thus, the court of first instance, which was the appellate court, should have judged the appeal of this case on the premise that it is legitimate to submit a written reason for appeal of this case. However, the court of first instance, which received the case of objection against the decision of permission for sale by the judicial assistant, shall be deemed to have dismissed the appeal of this case on the ground of its stated reasoning. The ground for reappeal pointing this out has merit.
Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cha Han-sung (Presiding Justice)