[2] The measures to be taken by the receiving court of the complaint in a case where the court of appeal did not indicate as the Supreme Court the indication of a special complaint and the appellate court in the submission of the complaint against the judgment that only the special complaint is allowed

Article 15(1) of the Civil Execution Act provides that an immediate appeal may be filed against a judgment by the court of execution on the execution procedure only where special provisions exist. Article 17(1) of the same Act provides that an immediate appeal may be filed against a decision to revoke the execution procedure, a decision to dismiss or dismiss an objection against a disposition by the execution officer who has revoked the execution procedure, or a decision to order the execution officer to revoke the execution procedure. Thus, an immediate appeal may be filed if a judgment on an objection against the execution falls under such case, but in other cases, an immediate appeal may not be filed against a judgment on an objection, and only an objection may be filed as a special appeal under Article 449 of the Civil Procedure Act applied mutatis mutandis pursuant to Article 23(1) of the Civil Execution Act (see Supreme Court Order 205Do87, Oct. 31, 2005). With respect to an objection against the judgment permitted only special appeal, even if the parties did not indicate a special appeal as the Supreme Court, the court in receipt of such appeal shall be deemed a special appeal and send it to the Supreme Court (see Supreme Court Decision 90Da296.

According to the records, when a special appellant submitted a written appeal to the court below against the decision to dismiss an objection concerning the execution of this case against which an immediate appeal may not be lodged, the court below sent the records to the appellate court of Incheon District Court, and the above appellate court dismissed the special appellant's appeal as an immediate appeal, but the judgment of the appellate court of the above appellate court was due to the judgment of the court without authority, so this case shall be treated as a special appeal against the decision of the court below.

The grounds of appeal shall be examined.

In light of the record, there is no unfair judgment in the order of the court below as to the reason for special appeal of statutes, that is, the violation of the Constitution that affected the trial, or the violation of the Constitution or the Act, which is the premise of the judgment.

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 Hwang-sik (Presiding Justice)