[1] Whether a decision on commencement of auction for the exercise of security right is subject to quasi-deliberation (negative)

[2] The meaning of "when the judgment was omitted with respect to a material fact that may affect the judgment" under Article 451 (1) 9 of the Civil Procedure Act

[1] Article 461 of the Civil Procedure Act provides that "where there are grounds provided for in Article 451 (1) in cases where an order or a ruling, which is entitled to appeal against a protocol or an immediate appeal under Article 220, has become final and conclusive, a retrial may be instituted in accordance with the provisions of Articles 451 through 460 of the final and conclusive judgment," it is limited to "a ruling or order which is entitled to appeal against a final and conclusive judgment," but this is merely a representative case, which is, in case where a ruling or order becomes final and conclusive independently regardless of the nature of a final and conclusive judgment, or an order or final and conclusive judgment, an independent quasi-adjudication may be filed, but there is no provision that an immediate appeal may be filed against a ruling on commencement of auction for the exercise of a security right, and such ruling on commencement of auction shall not be subject to an immediate appeal against a ruling on permission of sale, even if a higher-class trial has not been made by an immediate appeal. Therefore, such ruling on commencement of auction does not constitute an object of quasi-adjudication.

[2] "When a judgment is omitted with respect to important matters that may affect the judgment" under Article 451 (1) 9 of the Civil Procedure Act refers to a matter that affects the conclusion of the judgment, regardless of whether it constitutes an ex officio investigation, regardless of whether it constitutes an ex officio investigation, where a party does not make a decision despite his oral argument, or urging the court to make an ex officio investigation. Thus, it does not constitute a matter for which the party did not assert or urge the investigation.

[1] Article 461 of the Civil Procedure Act; Articles 83 and 268 of the Civil Execution Act / [2] Article 451 (1) 9 of the Civil Procedure Act

[2] Supreme Court Order 88Nu5570 decided May 23, 1989 (Gong1989, 1016) (Gong1991, 188) dated November 27, 1990 (Gong1991, 188) Supreme Court Order 200Ma629 decided October 28, 200 (Gong200Ha, 2423) decided October 28, 2000)

Re-appellant

Seoul Central District Court Order 2003Ra734 Dated July 13, 2004

The reappeal is dismissed.

1. Article 461 of the Civil Procedure Act provides that "where there are grounds provided for in Article 451 (1) in cases where an order or a ruling, which is entitled to appeal against a protocol or an immediate appeal under Article 220, has become final and conclusive, a retrial may be instituted in accordance with the provisions of Articles 451 through 460 against the final and conclusive judgment," which is limited to "a ruling or order, which is entitled to appeal", but this is merely a representative case, but where it falls under an independent decision or order, regardless of the nature of final and conclusive judgment, or the final and conclusive order or final judgment, it shall not be deemed that an independent quasi-adjudication may be filed, but there is no provision that an immediate appeal may be filed against a ruling to commence the auction for exercising a security right, an immediate appeal against the ruling to commence the auction may be contested by an immediate appeal even if the final and conclusive judgment has not been made by an immediate appeal. Therefore, such ruling to commence the auction does not constitute an object of final and conclusive judgment or an order to permit the final judgment.

The judgment of the court below that the decision on commencing the auction for exercising the security right does not constitute a quasi-deliberation is just, and there is no violation of the law as to the interpretation and application of Article 461 of the Civil Procedure Act as otherwise alleged in the ground of reappeal.

2. The term "when a judgment is omitted with regard to important matters that may affect the judgment" under Article 451 (1) 9 of the Civil Procedure Act, which is applied mutatis mutandis by Article 461 of the same Act, refers to the case where, regardless of whether it constitutes an ex officio investigation, a party does not make a judgment despite the oral argument, or urging the court to make an ex officio investigation, regardless of whether it constitutes an ex officio investigation. Thus, the matters for which the party did not assert or demand the investigation are not applicable (see Supreme Court Decisions 85Da43, Aug. 27, 1985; 200Ma629, Oct. 28, 200, etc.).

In the same purport, the court below is just to maintain and dismiss the ruling of the court of first instance which dismissed the application for quasi-deliberation on the ground that it does not constitute a ground for retrial under Article 451 (1) of the Civil Procedure Act which applies mutatis mutandis under Article 461 of the same Act, and it does not constitute a ground for retrial, and therefore, the court below did not violate the law as to the interpretation and application of Article 461 of the Civil Procedure Act, as alleged in the ground for reappeal's ground for appeal.

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)