[부동산임의경매][집37(4)민,7;공1990.3.1(867),445]
A special appeal against a decision to dismiss a petition of appeal by applying the same provision before the Constitutional Court's decision on unconstitutionality of Article 5-2 of the Act on Special Measures for Delayed Loans of Financial Institutions is made (negative)
Article 47(2) of the Constitutional Court Act provides that any law or provision of a law which the Constitutional Court decides as unconstitutional shall lose its effect from the date of the decision, unless it is related to a punishment under Article 47(2) of the Constitutional Court Act, and whether there exists a violation of the Constitution or any provision of a law that affected the decision or the order at the time of the decision or order, shall be judged in accordance with the Constitution or the provisions of a law at the time of the decision or order. Therefore, even if the Constitutional Court makes a decision that Article 5-2 of the Act on Special Measures for Delayed Loans of Financial Institutions violates the Constitution on a separate case proposed by a person other than the special appellant of this case, the decision to dismiss the petition of this case made by applying the above provision of a law prior to the decision or the decision is unconstitutional, unless the appeal is asserted that the above provision is unconstitutional or unconstitutional, and thus, it cannot be asserted that it
Article 5-2 of the Act on Special Measures for Delayed Loans by Financial Institutions, Article 47(2) of the Constitutional Court Act, Article 420 of the Civil Procedure Act
Attorney Tae-young et al., Counsel for the special appellant 1 and one other
Suwon District Court Order 88 Magi7301 dated May 17, 1989
The special appeal is dismissed.
We examine the grounds for special appeal.
With respect to No. 1:
In light of the records of the case, the appeal was dismissed on the ground of May 17 of the same year by the court below, and the special appellant filed an appeal on May 11, 1989 with respect to the case of auction of real estate in Suwon District Court 88ta-nam 7301, Sung-nam Branch 88, 7301, but the special appellant filed an appeal on May 16 of the same year, but there was no document to prove that the special appellant provided a security under Article 5-2 of the Act on Special Measures for the Extension Loans of Financial Institutions (hereinafter referred to as the "Special Measures"), and the special appellant filed an appeal on May 25 of the same year. In addition, the special appellant asserted that the above decision of permission of auction was unreasonable as the reason for the appeal, and did not claim that Article 5-2 of the Special Measures Act was unconstitutional, or that the above provision was unconstitutional, and therefore, it did not claim that it did not provide a security for the payment of appeal.
On the other hand, the Constitutional Court rendered a decision that Article 5-2 of the Act on Special Measures for the Prevention of Violations of the Constitution in the case No. 89Hun-Ga37 and 96 (the applicant, Nonparty 1 and Nonparty 2) on May 24, 1989, but the law or the provision of the law decided as unconstitutional shall lose its effect from the date of the decision, unless it relates to punishment under Article 47(2) of the Constitutional Court Act.
In addition, a special appeal may be filed only on the grounds that there is a violation of the Constitution or laws that affected the trial, or on the order, and it is not an appeal as an ordinary method of appeal, since it is an emergency method after the final and conclusive judgment, and it is not an appeal as an ordinary method of appeal. Thus, whether there is a violation of the Constitution or laws that affected the trial or the order shall be determined in accordance with the Constitution or the provisions of laws
However, an immediate appeal may not be filed against a decision to dismiss an appeal under Article 5-2 of the Act on Special Measures (Paragraph 3). Since a decision to dismiss an appeal simultaneously becomes final and conclusive (Paragraph 3), the decision to dismiss the appeal which applied Article 5-2 of the Act on Special Measures prior to the above decision to unconstitutionality should be judged on the premise that the above provision has the validity. The special appellant may not assert that the above provision is a violation of the Constitution as a special reason after the decision to dismiss the appeal becomes final and conclusive.
Therefore, the decision of the court below which rejected the above appeal without attaching documents to prove the fact that the special appellant provided the security stipulated in Article 5 (2) of the Act on Special Measures for the Settlement of Appeals to the appeal shall be justified, and the decision of the court below shall not be deemed to be unlawful on the ground that the decision of the court below was made on the separate case requested by a person who is not a special appellant.
Therefore, there is no reason to criticize the order of the court below from the viewpoint of opposition.
With respect to the second ground:
The argument of the theory that the decision of approval of a successful bid in this case was made at a low price than the actual market price is unfair is not a legitimate special ground for appeal against the order of the court below which dismissed the appeal on the ground that there is no document attached to the special appellant to prove that the special appellant provided a security under Article 5-2 of the Act on Special Measures for Special Measures. Therefore, the argument is without merit.
Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Young-ju (Presiding Justice)