Whether filing an appeal against a decision to grant a successful bid in the procedure of compulsory auction falls under “the date on which the compulsory execution has not been continued” under the Civil Procedure Act 633No. 1.

In a case where an appeal is filed against a decision of approval of a successful bid in the procedure of compulsory auction, and a prosecutor’s order of execution corresponding to a certificate of repayment was submitted to the appellate court before a decision of approval of a successful bid, such a reason constitutes “not to continue compulsory execution” under Article 633 subparag. 1 of the Civil Procedure Act, and thus, the appellate court should devise measures to suspend compulsory execution by itself.

Security Board

Busan District Court Order 74Ra86 dated October 9, 1974

The original decision is reversed and the case is remanded to Busan District Court Panel Division.

According to the reasoning of the original decision:

The court below rejected the reappeal's statement to the purport that, as to the grounds of appeal that the re-appellant paid KRW 348,840 and KRW 359,160 in total to the court of execution by the prosecutor's order, which is the claim for compulsory auction of this case, prior to the decision of permission of auction of July 17, 1974, the compulsory auction of this case cannot continue to exist since he paid KRW 359,160 in total to the collection agency of this case. As to the grounds of appeal that asserted that the compulsory auction of this case cannot continue to exist, as in this case, even if the claim already occurred due to the repayment, etc., is extinguished due to the cause such as repayment, etc., the executor does not lose its executive power as a matter of course unless the executor does not exclude the executory power by the lawsuit of objection against the claim. The appellant filed a complaint against the above decision after the notice of permission of auction of this case, and it was only submitted to the court of execution for the full payment of the receipt as alleged.

However, according to the record, the re-appellant submitted to the court below through the auction court the receipt of the additional collection charge under the name of 15 July 1974 in the name of the public official in charge of the revenue of the Busan District Public Prosecutor's Office, along with the written reason for appeal stating the above purport. If the certificate is true, it is obvious that it can be seen as a certificate of repayment under Article 510 subparagraph 4 of the Civil Procedure Act prepared before a decision of approval of auction was rendered on July 17, 1974. Thus, the court below which received the certificate of this case should have deliberated upon the measures that stop the compulsory execution of this case, and therefore, such reason falls under "shall not continue compulsory execution" under Article 633 subparagraph 1 of the same Act (see Supreme Court Order 65Ma797, Aug. 26, 1965).

Nevertheless, the court below did not err in rejecting the Re-Appellant's appeal on the ground that this case does not fall under the above grounds for objection under Article 633, and the argument is justified.

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench to reverse the original decision and to have the original court make a new trial and determination.

Justices Yang Byung-ho (Presiding Justice)