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(영문) 대법원 2000. 3. 17.자 99마3754 결정

[간접강제][공2000.6.1.(107),1135]

Main Issues

The method of appeal against the decision on revocation of indirect compulsory enforcement following the submission of the original copy of the judgment on revocation of provisional disposition (i.e., an objection against enforcement) and the title of the document submitted by the parties against the above decision is 'Immediate appeal' and the right of appeal is stated in the end of that decision, the

Summary of Decision

Article 511(2) of the Civil Procedure Act provides that the provisions of Article 504-2 concerning an immediate appeal shall not apply to a case where an execution disposition is revoked pursuant to paragraph (1) of the same Article. Thus, the original copy of the judgment revoking a provisional disposition shall be deemed to fall under "the original copy of the judgment stating the purport of ordering the cancellation of an execution disposition" under Article 511(1) and Article 510 subparag. 1 of the Civil Procedure Act. Thus, an immediate appeal against a ruling revoking a provisional disposition is not allowed, and in this case, the party dissatisfied with the ruling shall raise an objection against the execution. In such a case, if only the objection is recognized and the immediate appeal is not permitted, the title of the written appeal submitted while dissatisfied with the decision revoking a provisional disposition shall be deemed to be "the immediate appeal", and even if the title of the court of appeal is written in the end

[Reference Provisions]

Articles 504, 504-2, 510 subparag. 1, and 511 of the Civil Procedure Act

Reference Cases

Supreme Court Order 72Ma763 dated August 23, 1972, Supreme Court Order 94Ma1036 dated July 11, 1994 (Gong1994Ha, 2225) 971 dated March 3, 1997 (Gong197Sang, 1165)

Re-appellant

Sticker Co., Ltd. (Attorney Long-ro et al., Counsel for the plaintiff-appellant)

The order of the court below

Seoul High Court Order 99Ra79 dated June 8, 1999

Text

The order of the court below shall be reversed. The case shall be transferred to the Seoul District Court.

Reasons

ex officio deemed.

1. According to the records, the Seoul District Court sent the second-appellant's order as of June 17, 1997 to the debtor as of February 28, 1998, with an indirect compulsory execution order to pay 1 million won per day to the creditor, together with an opinion of the court below ordering the second-appellant to cancel the above provisional disposition's order on the ground that the Seoul District Court's order to cancel the above provisional disposition's indirect compulsory execution order on the ground that the above provisional disposition's order was not submitted to the court below as of December 27, 1997 and its domestic office, business office, branch, etc. of the same company's affiliate company's domestic company's affiliate company's domestic company's company's non-employment's provisional disposition, and that the above provisional disposition's order to cancel the above provisional disposition's indirect compulsory execution order on the ground that the above provisional disposition's order was not submitted by the court below as of December 198, 199.

2. Article 511(2) of the Civil Procedure Act provides that the provisions of Article 504-2 concerning an immediate appeal shall not apply in a case where the execution disposition is revoked pursuant to paragraph (1) of the same Article. Thus, the original copy of the judgment revoking the provisional disposition of this case shall be deemed to be the original copy of the judgment stating the purport of ordering the cancellation of the enforcement disposition of Article 511(1) and Article 510 subparag. 1 of the Civil Procedure Act, so an immediate appeal against the decision revoking the indirect compulsory performance of this case

In this case, the party dissatisfied with the objection should raise an objection against enforcement, and if only the objection against enforcement is recognized and the immediate appeal is not allowed, the title of the document submitted against the decision of revocation of indirect compulsory enforcement is the "Immediate Appeal", and even if the end of that part of that part of that part of that part of that part of the Seoul High Court, it is necessary to treat it as an objection against enforcement (see Supreme Court Order 94Ma1036, Jul. 11, 1994; Order 971, Mar. 3, 197, etc.). Furthermore, in this case, if the cancellation of the indirect compulsory enforcement of this case is based on the written submission under Article 510 subparagraph 1 of the Civil Procedure Act among the creditors' immediate appeal, it shall be treated as an objection against enforcement and shall be treated as a different objection, and it shall have been sent by the Seoul District Court to the court of execution, which shall have received it, again send the record of this case to the Seoul High Court to the court of execution.

Nevertheless, the court below's decision to dismiss an appeal by deeming the above objection as an immediate appeal shall not have committed an unlawful violation of the jurisdiction over the objection case concerning execution.

3. Therefore, the order of the court below is reversed ex officio without any need to reach a judgment on the grounds of reappeal, and the case is transferred to the Seoul District Court, which is the execution court having jurisdiction, and it is so decided as per Disposition by the assent of all participating

Justices Jack-dam (Presiding Justice)