(b)whether compulsory enforcement proceedings are suspended by an immediate appeal under paragraph (a);

(c)whether the immediate appeal under paragraph (a) is the first appeal by nature;

(d) The case which transferred the case recorded in the Supreme Court to the appellate court for the reason that it should be viewed as an immediate appeal even if the statement of "re-appeal" was stated in the written appeal against the ruling of rejection of the petition of appeal by the lower

A. The Civil Procedure Act provides for an immediate appeal (Article 504) and an objection (Article 517) against a judgment by the court of execution in the procedure of compulsory execution. Of them, an immediate appeal shall be permitted only where there are special provisions in principle (Article 517(1)). However, in the absence of special provisions, if it is recognized that the appeal should be treated equally in terms of interpretation, it shall be permitted. Since the provisions of Article 413 of the same Act shall also apply mutatis mutandis to compulsory execution procedures, Article 368-2 of the same Act concerning an appellate court in litigation procedures shall be applied mutatis mutandis under the same provisions. Therefore, in a case where an immediate appeal is filed by interested parties, such as owners of real estate at auction, against Article 413 and 367(2) of the same Act, and where the petition violates the provisions of Articles 413 and 367(2) of the same Act, and where the appellant fails to attach the stamps pursuant to the provisions of Acts, the presiding judge of the court of auction which is the court of appeal shall dismiss the appeal with the above order under Article 36(2).

(b) there is no provision that "the decision to dismiss an appeal by the court of original judgment under Article 642 (5) of the same Act shall be effective", and an immediate appeal against the decision to dismiss the appeal shall not have the effect of suspending the execution (Article 517 (2)), and therefore, the procedure of compulsory execution shall not be suspended because the confirmation of the decision to permit the auction is not interrupted due to the immediate appeal.

C. The decision to dismiss a petition of appeal by the court of original judgment under Article 642 (5) of the same Act is not a secondary disposition which the court of original judgment rendered a primary disposition on the permission of a successful bid on behalf of the court of appeal as to the propriety of the decision of permission of the successful bid, but a primary disposition which, regardless of the legitimacy of the decision of permission of the successful bid, determines as to whether an immediate appeal submitted by the debtor or owner against the decision of permission of the successful bid is accompanied by a document attesting that the guarantee has been offered. The above immediate appeal, which is the method of objection, is an initial appeal by nature. Thus, the appeal against the above decision of rejection is an initial appeal. Thus, the previous opinion by the party member that the appeal against the decision of permission of the successful bid should be deemed a reappeal (the decision 91g dated May 15, 1991)

D. The case which transferred the case recorded in the Supreme Court to the appellate court, which is the competent court, on the ground that even though the appellant stated the "written reappeal submitted while dissatisfied with the ruling of rejection of the complaint by the court of original judgment," it should be viewed as an immediate appeal.

[Dissenting Opinion]

A. Unlike the legal procedures that may become final and conclusive by no dispute or judicial procedures, Article 517 cannot be lodged in the court's order to dismiss an immediate appeal on behalf of the court for the same purpose as that of Article 4 of the Act, since the procedures for compulsory execution to be realized by an executing agency of the State already established under the name of obligations are more severe than that of the procedures, Article 409 and Article 517 of the same Act are different from those of Article 404 and Article 514 of the same Act, so that an immediate appeal may be filed against the ruling of the court's rejection of an appeal on behalf of the court for the same purpose as those of Article 54 of the Act, and it is impossible for the court to dismiss an appeal on behalf of the court for the same purpose as that of Article 409 or 414 of the same Act (see, e.g., Supreme Court Decisions 200Da16420, supra, whichever are different from that of the final ruling of the court's rejection for an immediate appeal.

On the other hand, the law provides an objection against the immediate appeal (Article 517) and the enforcement (Article 504) as the method of appeal against the judgment by the court of execution in the compulsory execution procedure. Among them, an immediate appeal is permitted only when there are special provisions in principle (Article 517 (1)). However, in the absence of such special provisions, if it is recognized that it should be treated equally in the interpretation, it shall

However, since Article 413 of the Act applies to compulsory execution procedures, the provisions of Article 368-2 of the Act concerning an appellate trial in litigation procedures shall be applied mutatis mutandis pursuant to the same provision. Therefore, in cases where interested parties, such as the owner of real estate at auction, have filed an immediate appeal against a decision of revocation of a successful bid, the presiding judge of an auction court, which is the court of original judgment, shall dismiss the above written appeal by order when the written appeal violates the provisions of Articles 413 and 367 (2) of the Act, and where it is evident that the appellant has failed to correct defects even though the written appeal was ordered to correct defects and the period of appeal has expired (Article 368-2 (1) and (2) of the Act), and the order to dismiss it shall not be subject to an immediate appeal (Article 368-2 (3) of the Act). In addition, in light of the fact that the presiding judge's order to dismiss the appeal procedure at the court below's appellate court's final decision (Article 417 (2) has no effect on the immediate appeal procedure).

In addition, the order of the presiding judge of the court below to dismiss a petition of appeal on the compulsory execution procedure and the decision of rejection of a petition of appeal by the court below under Article 642, Paragraph 5 of Article 642 of the Act is not different in its nature from the interests of interested parties (in particular, appellant) due to the prevention of and the promotion of the procedure for remaining appeal, and there is no different in its nature. Thus, as the appellant can object to the above rejection order by the method of an immediate appeal under Articles 413 and 368-2, Paragraph 3 of the Act, it shall be deemed that the appellant can object to the above rejection order by the method of an immediate appeal under the same provisions, and there is no provision that "the above rejection order shall have the effect of suspending the execution", and there is no effect of suspending the execution against the above rejection order (Article 517, Paragraph 2 of the same Article) and therefore, it shall not be deemed that the compulsory execution procedure

The decision of rejection of a petition of appeal by the court of original judgment under Article 642 (5) of the Act is not a secondary disposition which the court of original judgment rendered a primary disposition as seen above, on behalf of the court of appeal as to the propriety of the decision of permission of adjudication, but a primary disposition which, regardless of the legitimacy of the above decision of permission of adjudication, decides as to whether an immediate appeal submitted by the debtor or owner against the above decision of permission of adjudication is accompanied by a document attesting that the guarantee has been offered. The above immediate appeal, which is the method of appeal, is an initial appeal by nature. Thus, the appeal against the above decision of rejection, is an initial appeal. Thus, the previous opinion of the party member that the appeal against the above decision of rejection should be deemed a reappeal (the ruling 91g dated May 15, 191) is to be modified.

2. On September 5, 1994, the appellant and the debtor in the auction procedure to exercise the security right of this case, submitted an immediate appeal without depositing a deposit of cash equivalent to 1/10 of the successful bid amount under Article 642 (4) of the Auction Court as the debtor and owner of the auction procedure to exercise the security right of this case, and the appellant submitted an immediate appeal on September 9, 1994. The auction court which is the court below dismissed the appeal by its ruling on September 13, 1999 on the ground that there is no document to prove that there was an offer of a guarantee on the immediate appeal, and the appellant appealed against the above decision of rejection and submitted the document stating "the reappeal on September 22, 199 of the same year" to the court of original judgment on September 22, 1994 on the ground that the reappeal is not accompanied by a document to prove that the reappeal is without merit.

However, the provisions of Articles 641, 642, and 517 of the Act concerning the procedure for compulsory execution under Article 728, 735 of the Act shall apply mutatis mutandis to an auction procedure for exercising a security right. Thus, the above decision of dismissal by the court of original instance shall be deemed to be subject to an immediate appeal under Articles 413 and 368-2 (3) of the Act. Therefore, even if the appellant stated the "re-appeal in writing submitted while dissatisfied with the above decision of rejection," it shall be deemed to be an immediate appeal. Thus, the competent court shall be deemed to be the collegiate division of the Seoul Civil District Court, the appellate court.

3. Therefore, it is so decided as per Disposition by the assent of all participating judges except for the cases of Justice Park Jong-ho and Justice Lee Yong-hun to transfer the case to the competent court.

The Dissenting Opinion by Justice Park Ho-ho and Justice Lee Yong-hun is as follows.

1. Articles 368-2, 395, and 413 of the Civil Procedure Act (hereinafter referred to as the “Act”) provide that an immediate appeal may be filed against an order to dismiss a petition for appeal based on the right to review a petition for appeal filed by the presiding judge of the original instance, while Article 642(5) provides that an appeal may be filed against an order to dismiss a petition for appeal based on the right to review a petition for appeal filed by the presiding judge of the original instance, and there is no provision as to a decision of rejection of a petition for appeal filed by the original court or the method of appeal, so that an appeal may be filed under Article 409 or 414 of the Act, which is the general provision on a petition for appeal filed in the litigation proceedings, or an appeal filed under Article 504 or 517, which is the method of filing a petition for compulsory execution proceedings (Article 728, 735 of the Act applies mutatis mutandis to both Articles 504, 517, and 642 of the Act for the enforcement of a security right to collateral.

2. First, I would like to examine whether a decision to dismiss a petition of appeal under Article 642(5) of the Act can be appealed under Article 409 or 414 of the Act.

Article 409 of the Act provides that “Any appeal may be filed against a ruling or order dismissing an application for the procedure of execution” and Article 414 of the Act provides that an immediate appeal shall be filed, and Article 417 shall have the effect of suspending execution against an immediate appeal. In ordinary sense, since the concept of a judgment procedure (consultation procedure), compulsory execution procedure and provisional seizure provisional disposition procedure is included, this provision appears to apply to the procedure of compulsory execution, but Article 517(1) provides that “an immediate appeal may be filed only in cases where special provisions exist with respect to a judgment on the procedure of compulsory execution” and Article 504(1) provides that “Where an immediate appeal cannot be filed as a judgment of the executing court on the procedure of compulsory execution, an objection may be filed to the court with respect to the procedure of compulsory execution, which provides that “Article 417 of the Act shall be deemed to have the effect of suspending execution with respect to the procedure of compulsory execution and the right to a claim for an immediate appeal, which is a special provision of Article 504 of the Act concerning the procedure of compulsory execution.”

On the other hand, although it is clear about the procedure of compulsory execution, the decision to dismiss a petition for appeal against the decision to grant a successful bid may also be a matter of whether the decision to dismiss the petition for compulsory execution procedure is a judgment on the procedure of compulsory execution. However, our Civil Procedure Act also provides for the procedure of appeal against the judgment on the procedure of compulsory execution (Articles 641 through 644). The procedure of appeal against the decision to grant a successful bid is one of the procedure of compulsory execution to realize the right to claim performance indicated in the name of the debt rather than the one which becomes a dispute or legal relationship first becomes final and conclusive. Therefore, Article 409 or 414 is not applied in principle to the decision to dismiss the petition for a decision to grant a successful bid bid, and it is not possible to file an appeal under Article 409 or an immediate appeal under Article 414.

3. Furthermore, we will examine whether the objection against the execution of Article 504 or the immediate appeal under Article 517, which is the method of appeal under the Compulsory Execution Act, can be filed against the decision to dismiss the petition of appeal under Article 642(5) of the Act.

(a) First, whether an immediate appeal under Article 517 may be filed or not;

Article 517(1) of the Act provides that an immediate appeal may be filed only in cases where “special provisions exist” exist in a judgment on the procedure for compulsory execution. Since the amended Civil Procedure Act of the Republic of Korea on January 13, 1990 takes a position to clearly define cases where an immediate appeal is to be filed in order to avoid confusion as to the method of appeal in the procedure for compulsory execution, thereby excluding the possibility of an immediate appeal by analogical interpretation or expanded interpretation, an immediate appeal may not be permitted unless an immediate appeal is permitted by the express provision.

However, the majority opinion does not have different nature of the decision to dismiss a petition of appeal filed by the court below under Article 642 (5) of the Act and the order to dismiss a petition of appeal by the presiding judge of the court below under Articles 368-2 and 413, and therefore, the appellant is entitled to appeal against the above order pursuant to Article 368-2 (3) as well as the above decision to dismiss an immediate appeal (Article 414) pursuant to the same provision. Although the majority opinion does not clearly state whether an immediate appeal is referred to in Article 414 or Article 517, the decision to dismiss a petition of appeal should not be interrupted due to an immediate appeal against the decision to dismiss the petition of appeal, it seems that the immediate appeal is recognized under Article 517 (1) because it is based on the premise that the final decision to dismiss a petition of appeal is excluded from the effect of suspending execution under Article 517 (2).

However, Article 517 provides that an immediate appeal may be filed only in cases where there is a "special provision" in regard to a judgment on compulsory execution procedure, barring any express provision, so that an immediate appeal may be filed, it may be dismissed to the extent that it is similar to this Article in the above Article 517: Provided, That an order to dismiss a petition of appeal by the presiding judge of the original instance for reasons of non-requirements for entry in the petition of appeal (Articles 413(1) and 367(2)) or intelligence, etc. (hereinafter referred to as "order to dismiss a petition of appeal by stampping, etc.") is not unique to the Compulsory Execution Act, and common legitimate requirements (Article 368-2(1)) that the appellate court may deliberate by the presiding judge, and thus, an order to dismiss an immediate appeal pursuant to Article 368-2(2) is to be construed as an "order to dismiss a petition of appeal by the presiding judge of the original instance" as part of a system common to promote the procedure, its legislative purpose or purpose, judicial institution (Presiding Judge), form (Presiding Judge), etc.

An order to dismiss a petition of appeal on the ground that there is no offer of guarantee under Article 642(5) of the Act is a system which differs in its nature from that of a decision to dismiss a petition of appeal on the ground that there is no offer of guarantee under Article 642(5) of the Act. As seen above, an order to dismiss a petition of appeal on the grounds of intelligence, etc. is a system that is completely different from that of a different nature from that of a decision to dismiss a petition of appeal. The order to dismiss a petition of appeal under Article 642(5) is, compared to that of a common system under the right to examine a petition of appeal in the ordinary procedure, only for compulsory execution of real estate. This is a system established to prevent the owner or debtor of real estate at auction from abusing an immediate appeal system for the purpose of delaying the procedure of appeal, and it is completely distinguishable from that of the system or its annual members, which generally provides for the purpose of the appeal system or to ensure that the method of appeal under Article 642(5) of the Act can not be applied mutatis mutandis to an order to dismiss a petition of appeal.

Therefore, we cannot agree because the majority opinion argues that the rejection order and nature of the presiding judge of the original court by means of intelligence, etc. based on Articles 413 and 368-2(2) may be opposed to the ruling of rejection of a complaint by the original court under Article 642(5) is identical to the order of rejection of a complaint by the court below which is based on Article 413 and Article 368-2(2) and that an immediate appeal may be raised by the method of appeal, which is a method of appeal, recognized as an identical matter, in spite of the absence of a "special provision that recognizes an immediate appeal against the ruling of rejection of a complaint", the method of appeal which is recognized as an immediate appeal is applied by analogy of Article 517(1) of the Act, which recognizes an immediate appeal only in the case where "special provision is admitted", and the revised compulsory execution system under the Civil Procedure Act is seriously disturbed

B. Next, we examine whether there is an objection against the enforcement of Article 504.

"Judgment of the court of execution", which is the object of objection to the execution of Article 504 of the Act, can be said to be the exception that an immediate appeal may be filed under the provisions explicitly among all trials conducted by the court of execution. However, even if the court of execution is a judgment by the court of execution in form, it cannot be deemed to correspond to the final judgment by the court of execution on behalf of the court of appeal. Once a decision of permission for successful bidding is rendered, the final judgment by the court of execution is conducted, and the right to examine the petition of appeal is in the original appellate court, but Article 642 (5) of the Act grants the court of appeal the authority to examine the petition of appeal on behalf of the court of appeal in order to promote the procedure. Therefore, this is not the judgment by the court of execution but the judgment by the court of execution on behalf of the court of appeal. Therefore, the decision of rejection for this appeal by the court of execution on behalf of the court of execution, which is a final judgment on the execution procedure of execution by the court of execution, it cannot be said to be dismissed as the above decision of appeal is not dismissed.

C. Ultimately, Article 642(5) which provides for the decision to dismiss an appeal on the grounds that no guarantee is provided in an appeal against the decision to grant a successful bid is a special provision for a real estate auction, and thus, it is entrusted to the interpretation of Articles 504 and 517 as to the method of appeal. As described above, Article 368-2(3) concerning the procedure for appeal is not applicable or analogically applicable, and thus, it is not possible to appeal as an immediate appeal, and it is impossible to raise an objection due to its nature, and thus, it is interpreted that there is no method of appeal.

However, such interpretation of the method of appeal under Article 642(5) of the Act is also valid in legislative history. In original, Article 642(5) of the Act absorbs Article 15(2) of the former Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (amended by Act No. 4203, Jan. 13, 1990; hereinafter “former Special Act”). Article 15(3) of the former Special Act stipulating that no objection against a ruling of rejection of a petition for appeal is possible. The amended Civil Procedure Act explicitly provides that Article 8(3) of the former Special Act shall apply mutatis mutandis to an order of rejection of a petition based on the petition of appeal and the right of review of a petition for appeal by the presiding judge of the original court under Article 8(2) of the former Special Act, which does not explicitly stipulate that an immediate appeal can be dismissed for the same reason as an order of rejection of a petition for appeal under Article 368-2(2) and (3) of the former Special Act, which does not stipulate that an immediate appeal shall be dismissed for the foregoing rejection of a petition.

4. As above, the decision of rejection of a written appeal under Article 642 (5) of the Act cannot be subject to an objection under Article 504, and if an immediate appeal under Article 517 cannot be filed, there is no procedure for objection. However, Article 420 of the Act provides that "decision or order which cannot be filed for objection" shall be subject to a special appeal against "decision or order which cannot be filed for objection". In this context, the term "decision or order" is prohibited as provided by Article 25 (2) of the Act, as well as the express provision that an objection is prohibited as well as the express provision that is against the rejection of a written appeal or a written decision of rejection of a written decision of rejection of a written protocol of conciliation, such as the decision or a written decision of rejection of a written decision of rejection of a written appeal shall be deemed to include a case where there is no method of objection by nature or interpretation (see, e.g., Supreme Court Order 19, Apr. 19, 1983; Order 83Do15, Mar. 27, 1984).

5. Furthermore, this interpretation has advantages to promote the simplification and swiftness of the procedures compared to other interpretation methods in the treatment of enforcement practice.

In other words, first, an appeal may be filed pursuant to the general provisions of Article 409 against the decision to dismiss a petition of appeal under Article 642 (5) of the Act, and such appeal shall be deemed an immediate appeal by nature, and if the auction court rendered a judgment by an appellate court under the special provisions of law and thus the appeal against such decision is a reappeal by nature, it shall become a reappeal. The above appeal shall be an immediate appeal under Article 414 and shall have the effect of suspending execution under Article 417 as an immediate appeal under Article 414. In principle, it shall be dismissed from the purport of Article 517 (2) which excludes the effect of suspending execution. This is relatively simple and clear, and even though it is extremely low possibility for the court to mislead the judgment, the decision to dismiss the petition of appeal shall not become final and conclusive, and it shall not be justified until the execution procedure is executed by the Supreme Court without any justifiable reasons because it is too complicated and unreasonable.

Second, if it is allowed to raise an objection against the decision of rejection of the above complaint, a new immediate appeal may be filed against the decision of rejection of the complaint, and a reappeal may be filed against this decision. As seen earlier, the procedure is too complicated compared to the contents of a relatively simple and clear case, and the objection can be raised unless the procedure is completed due to the lack of the time limit for filing an objection against the execution.

However, in light of the nature of the contents of the case relatively simple and clear, the examination of whether to grant a guarantee deposit, in principle, it is interpreted that only a special appeal may be made under Article 420 of the Act in exceptional cases where there is no method of appeal and there is no violation of the Constitution or law that affected the conclusion of the trial. Furthermore, the special appeal does not have the effect of suspending execution, and thus, it is not necessary for the court of original judgment to send all records to the Supreme Court and to continue compulsory execution procedures after having sent a certified copy of the judgment necessary for the deliberation of the Supreme Court. Therefore, it is possible to prevent the abuse of the right to make unfair appeal, and the period of time is limited to one week (Article 420(2) of the Act). In this regard, even if the permission of an immediate appeal against the decision to dismiss the above appeal is granted in accordance with the majority opinion, there is no big problem in the immediate appeal procedure.

6. In conclusion, the decision to dismiss an appeal under Article 642(5) of the Act cannot be filed with the appeal under Article 409 or the immediate appeal under Article 414, as well as the objection under Article 504 or the immediate appeal under Article 517 cannot be filed with respect to the enforcement of Article 504. Therefore, the Supreme Court Order 9 dated May 15, 1991 and 917 ruled that an appeal against the decision to dismiss an appeal under Article 642(5) of the Act shall be filed not only by re-appeal but also by Article 409 of the Act, and also by its nature shall be changed.

Therefore, the Re-Appellant's objection to the rejection decision of the appeal under Article 642 (5) of the Act cannot be re-appealed against the above decision, as stated above, since it is possible to make a special appeal. Thus, in the case of this case where the court below rejected the appeal as unlawful pursuant to Article 642 (4) of the Act on the ground that the highest bidding price was low and damages to the special appellant who is the debtor and the owner are not the special appeal under Article 420 of the Civil Procedure Act. Accordingly, the special appeal of this case should be dismissed.

Chief Justice Yoon-hee (Presiding Justice) (Presiding Justice)