Whether Appellee in the final appeal may file an application for restoration of provisional execution and compensation for damages under Article 215(2) of the Civil Procedure Act (negative)

In case where a party appealed at an appellate trial after having rendered a judgment of performance against which a provisional execution declaration has been attached, without filing a request for a judgment under Article 215(2) of the Civil Procedure Act, and upon being sentenced to a judgment changing the original case of the first instance, the other party appealed, the said request shall not be made at the appellate court.

Article 215(2) of the Civil Procedure Act

Daewoo Securities Co., Ltd. (Law Firm continental, Attorneys Inn Sang-chul et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm Han, Attorney Choi Woo-soo, Counsel for defendant-Counterclaim)

Seoul High Court Decision 2002Na36756, 36763 delivered on February 14, 2003

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff). The appeal is dismissed pursuant to Article 215(2) of the Civil Procedure Act.

1. The court below recognized that the application form for re-issuance of the securities card with the Defendant (Counterclaim Plaintiff, hereinafter “Defendant”)’s own signature and the certificate of receipt of the re-issuance card are affixed with a seal different from that reported at the time of opening the account, and that the above seal is affixed to three copies of the application form with the Defendant’s own signature when finding the consignment amount from the entrusted transaction account of this case, the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) reissued the securities card and sent the balance stating the reason to the Defendant by registered mail, and the Defendant confirmed that the balance of the entrusted transaction account of this case was 1,053,289, after visiting the Plaintiff’s ○○ branch on October 9, 200, and delivered the application form for re-issuance of the securities card, the certificate of confirmation of the re-issuance card delivery, and the certificate of receipt of the re-issuance to the Nonparty, and thus granting the authority to withdraw the consignment amount from the Defendant’s securities consignment account as alleged in the grounds of appeal.

2. In a case where a party who had been sentenced to a judgment of execution against which a provisional execution declaration was attached at the court of first instance and appealed at the appellate court, without filing a request for a judgment under Article 215(2) of the Civil Procedure Act, and the other party filed an appeal after being sentenced to an alteration of the judgment of the first instance court, the said request shall not be filed at the court of final appeal. Accordingly, the instant application seeking a judgment under Article 215(2) of the

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be borne by the losing defendant, and the appeal shall be dismissed in accordance with Article 215(2) of the Civil Procedure Act.

Justices Zwon (Presiding Justice)