[1] Whether an application for the suspension of compulsory execution with respect to the part revoked by an appellate judgment among the judgment of the first instance court of the provisional execution sentence is legitimate (negative)

[2] Whether the defendant, who did not appeal against the part maintained by the appellate judgment among the judgment of the first instance court of the provisional execution sentence, can seek a suspension of compulsory execution based on the judgment against the court of final appeal on the merits case (negative)

[3] In a case where the appellate court maintains the first instance judgment on only one of the claims, and dismissed the plaintiff's claim on the remaining one, as to the part against which the plaintiff lost, and the defendant's right to appeal on the part against the plaintiff was extinguished, the method by which the defendant can suspend compulsory execution on the part against the plaintiff in favor of the appellate judgment

[1] From among the judgment of the first instance court of the provisional execution sentence, the sentence of provisional execution of the part revoked by an appellate court judgment shall lose its validity by a declaration of the appellate court judgment (see Article 215(1) of the Civil Procedure Act), and the original copy of the appellate court judgment may be suspended by submitting the original copy of the judgment to the court of execution, and as such, this part of the application is unlawful

[2] As to the part of the judgment of the court of first instance which was maintained by the appellate court's judgment among the judgment of the court of first instance, the applicant who did not appeal as to the part in favor of the plaintiff cannot seek a suspension of compulsory execution based on the judgment against the court of final appeal on the merits case (see Articles 500 and 501 of the Civil Procedure Act). Thus, the application for suspension of compulsory execution on this part is also unlawful

[3] In a case where the appellate court maintained the judgment of the first instance only for one of the claims and dismissed the plaintiff's claim against the part against the plaintiff while only the defendant appealed against the judgment of the judgment of the judgment of the judgment of the judgment of the judgment of the provisional execution which accepted both simple combinations of claims, the appellate court did not appeal against the part against the plaintiff in the judgment of the appellate court as to the part against which the plaintiff's claim was rejected, and there is no benefit in the appeal as to the part against the plaintiff. In such a situation, where the defendant who did not appeal against the above part in the judgment of the appellate court did not appeal against the above part in the judgment of the appellate court, even if the above part in the judgment of the appellate court exceeds the fixed period of appeal or gives up the right to appeal against the above part in the judgment of the appellate court, the above part in the judgment of the appellate court becomes final and conclusive, and after the judgment of the appellate court becomes final and conclusive by applying Article 44 of the Civil Execution Act, the defendant may file a lawsuit of objection against the plaintiff separately and receive a decision of compulsory execution.

[1] Article 215(1) of the Civil Procedure Act / [2] Articles 500 and 501 of the Civil Procedure Act / [3] Article 215(1) of the Civil Procedure Act, Articles 500 and 501 of the Civil Procedure Act, Article 44 of the Civil Execution Act

[1] [2] Supreme Court Order 2000Kaga90 Decided July 19, 200 (Gong2000Ha, 1921) / [3] Supreme Court Decision 94Da4464 Decided December 23, 1994 (Gong1995Sang, 645) Supreme Court Decision 99Da30312 Decided April 27, 2001 (Gong201Sang, 1229)

Applicant

Respondent

The motion of this case is dismissed.

1. The record reveals the following facts.

A. As to the claim for the purchase price between the applicant (the defendant-Appellee) and the respondent (the plaintiff-Appellant) in the case of applying for the suspension of compulsory execution of this case, the court of first instance rendered a judgment in favor of the plaintiff in the provisional execution declaration citing ① the purchase price of building KRW 16,00,000 and the delay damages thereon, ② the sale price of building KRW 15,00,000 and the delay damages thereof, and the delay damages therefrom.

B. As a result, only the Defendant appealed, the lower court modified the first instance judgment to the effect that partially admitted the Defendant’s appeal on January 27, 2006, and maintained the part ordering the payment of KRW 16,000,000 of the first instance judgment and damages for delay thereof, and dismissed the Plaintiff’s claim as to the claim for the purchase price of forest.

C. As to this, only the Plaintiff filed an appeal against the part against the Plaintiff among the judgment of the court below, and the compulsory auction procedure for real estate auction, which is the enforcement title of the judgment of the first instance court of the above provisional execution sentence, is currently in progress (the Changwon District Court

D. The plaintiff and the defendant's appeal period against the judgment of the court below had already been subject to the appeal period, and the plaintiff's appeal period was not yet subject to the plaintiff's appeal period since the notice of receipt of the records of the court of final appeal against the plaintiff

E. On March 21, 2006, the Defendant deposited KRW 20,771,506 in deposit with the Changwon District Court No. 223 in 2006 as to the part in favor of the Plaintiff maintained in the original judgment among the judgment of the first instance, and the Plaintiff did not receive the deposit money.

F. Accordingly, the Defendant filed an application in this case with the purport that the compulsory execution based on the judgment of the first instance court and the judgment of the court of final appeal are suspended until the judgment of final appeal is rendered.

2. Determination:

On the other hand, among the judgment of the court of first instance, the sentence of provisional execution on the part of the judgment of the court of first instance revoked by the judgment of the court below becomes null and void due to the declaration of the court of first instance (see Article 215(1) of the Civil Procedure Act), and since an applicant may suspend compulsory execution on this part by submitting the original copy of the judgment of the court of execution to the court of execution, this part of the application is unlawful as there is no benefit to separately apply for the suspension of compulsory execution. In addition, among the judgment of the court of first instance on the above provisional execution sentence, the applicant who did not appeal against the part in favor of the plaintiff maintained by the judgment of the court of first instance cannot seek a suspension of compulsory execution based on the judgment of the court of first instance against the court of appeal (see Articles 500 and 501 of the Civil Procedure Act). Thus, the application for the suspension of compulsory execution on this part is also unlawful (see Supreme Court Order 200Ka90

As seen in this case, where the court below maintains only one of the judgment of the court of first instance and dismissed the plaintiff's claim against the part against the plaintiff while only the defendant appealed against the judgment of the court of first instance which cited two simple joined claims as in this case, and only the plaintiff appealed against the part against the plaintiff. Among the judgment below, the part of the judgment of the court below which did not appeal against the plaintiff as to the part of the judgment of the court of first instance, and there is no benefit of the appeal. In this circumstance, where the defendant who did not appeal against the above part of the judgment of the court of first instance is unable to appeal any longer due to waiver of the right to appeal against the above part of the judgment of the court of first instance which rejected the plaintiff's claim, the above part of the judgment of the court of first instance becomes final and conclusive (where only the part of the judgment of the court of first instance which rejected the plaintiff's claim in whole, the remaining part of the judgment of the court of first instance which did not appeal is block by the appellate court and this part becomes final and conclusive by applying the judgment of this case to the appellate court's decision 420.4.

3. Conclusion

Therefore, the motion of this case is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)