Whether a re-appeal under Article 412 of the Civil Procedure Act may be raised against a decision of the appellate court which accepted an application for preservative measure without pleading (negative)

A debtor or respondent may raise an objection to the court which has issued the preservative measure pursuant to Articles 703 and 715 of the Civil Procedure Act against the decision of accepting an application for preservative measure, such as a provisional seizure or provisional disposition, which has been made without pleading, and even if the decision of acceptance was made by the appellate court, it shall not be contested as a reappeal pursuant to Article 412 of the Civil Procedure Act.

Articles 412, 703, and 715 of the Civil Procedure Act

Supreme Court Order 90Ma819 dated March 29, 1991 (Gong1991, 1283), Supreme Court Order 92Ma19 dated August 29, 1992 (Gong1992, 2837), Supreme Court Order 95Ma728 dated October 10, 1995 (Gong195Ha, 37199)

Re-Appellant (Appointed Party)

Busan High Court Order 98Ra50 dated January 29, 1999

The reappeal shall be dismissed.

The grounds of reappeal are examined ex officio prior to judgment.

In light of the record, the first instance court rejected the applicant's application for provisional disposition of this case, and as a result, the applicant filed an appeal against the decision of the first instance court to the lower court, the lower court accepted the applicant's appeal without pleading, and rendered a decision citing the application for provisional disposition of this case.

However, with respect to a decision that accepts an application for preservative measures, such as a provisional attachment or provisional disposition, which was made without pleading, an obligor or respondent may raise an objection to the court that issued such preservative measures pursuant to Articles 703 and 715 of the Civil Procedure Act, and even if the decision of acceptance was made by the appellate court, it cannot be asserted as a reappeal pursuant to Article 412 of the Civil Procedure Act (see Supreme Court Order 95Ma728, Oct. 10, 195). Thus, the reappeal of this case against the decision of provisional disposition applicant by the court of original instance is unlawful.

Therefore, it is so decided as per Disposition by the assent of all Justices who reviewed the reappeal.

Justices Kim Jong-sik (Presiding Justice)