The method of appeal against a decision on the grant of execution clause (=special appeal) and whether a special appeal can be made solely on the grounds that a decision in the trial violates the law (negative)

Article 49(1) of the Civil Procedure Act; Articles 30(2), 32, and 34 of the Civil Execution Act

Supreme Court Order 97Ma250 dated June 20, 1997 (Gong1997Ha, 2256)

Appellant

Other party corporation (Attorney Park Jong-soo, Counsel for defendant-appellant)

Busan District Court Order 2007Kao205 dated April 4, 2007

The special appeal is dismissed.

The grounds for special appeal are examined.

In a trial on an objection against grant of execution clause, only the special appeal stipulated in Article 449(1) of the Civil Procedure Act is permitted (see Supreme Court Order 97Ma250, Jun. 20, 1997, etc.). Special appeal is permitted only when there is a violation of the Constitution that affected the trial on a decision or order that is not legally dissatisfied with, or when the judgment on the violation of the Constitution or of an order, rule, or disposition that is the premise of the judgment is unreasonable (Article 449(1) of the Civil Procedure Act). Thus, it cannot be said that there is a violation of the Constitution that affected the trial on the sole ground that the decision was in violation of the Act, etc., and thus, special appeal is not a ground

In light of the above legal principles and records, the reason for a special appellant's assertion is nothing more than a violation of the law or misunderstanding of legal principles as to Articles 30 (2) and 32 of the Civil Execution Act, etc., and thus, it cannot be a legitimate reason for special appeal (However, if the execution clause was granted in violation of Article 30 (2) of the Civil Execution Act, as the special appellant's assertion, if the execution clause was granted in violation of Article 30 (2) of the Civil Execution Act, the special appellant who is the debtor may file a lawsuit of objection against the grant of execution clause under Article 45 of the Civil Execution Act, and in this case, the judgment rejecting an objection against the grant of execution clause is not recognized as res judicata, and therefore the special appellant's lawsuit of objection against the grant of execution clause of this case is

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

Justices Cha Han-sung (Presiding Justice)