[1] Where an appeal has been filed against a judgment with a declaration of provisional execution, the purport of Articles 500 and 501 of the Civil Procedure Act, which provides that the court shall decide whether to suspend compulsory execution if the records of trial are in the first instance court

[2] The case reversing the decision of the first instance court to suspend compulsory execution against the judgment of the provisional execution sentence, where the party to the decision of the first instance court on the suspension of compulsory execution against the judgment of the provisional execution sentence, where the first instance court rendered a decision of the suspension of compulsory execution despite the record

[1] Articles 500 and 501 of the Civil Procedure Act / [2] Articles 500 and 501 of the Civil Procedure Act, Article 27 of the Constitution

Special Appeal 1 et al. (Law Firm Dong, Attorneys Park Young-soo et al., Counsel for the defendant-appellant)

Senior Had Private Charnel Corporation

Uibu District Court Order 2007Kadan1028 dated September 28, 2007

The order of the court below is reversed, and the case is transferred to Seoul High Court.

According to Articles 501 and 500 of the Civil Procedure Act, in cases where an appeal has been filed against a judgment with a declaration of provisional execution where a declaration of provisional execution is attached, if the grounds for appeal are deemed to be legally well-founded and there exists a vindication of the facts, the court may order the temporary suspension of compulsory execution upon request of the parties. In this regard, a judgment on such grounds shall be rendered by the original appellate court, or if the records of proceedings are in the first instance court, the court shall make it available for it. This is because the records are essential to the records of proceedings in determining whether there is justifiable grounds for objection and vindication, so if the records are in the first instance court, the court shall make a prompt decision on whether to suspend compulsory execution according to the records of proceedings

According to the records, the original court of this case is the first instance court of the case of Goyang Branch 2006Gahap7778, Goyang Branch 2006, Goyang Branch 2006Gahap778, and the record of this case was already sent to the appellate court on September 18, 2007 and did not have the record of trial in the first instance court. However, it can be seen that the original court of this case was ordered to provide security on September 21, 2007 and received a written answer to the applicant for the suspension of compulsory execution on September 27, 207, and deliberated the order to suspend compulsory execution on September 28, 2007.

Therefore, the court below did not have the authority to decide on the suspension of compulsory execution due to the lack of court records in the first instance court. Moreover, it made a decision on the suspension of compulsory execution by recognizing that there is a justifiable reason and prima facie proof without any data necessary to determine whether there is a justifiable reason and vindication. This order of the court below is obvious that there is a serious procedural error, thereby infringing the right of special appellant to receive a fair trial according to legitimate procedures guaranteed in Article 27 of the Constitution, etc., and such violation affected the result of the decision.

Therefore, the order of the court below is reversed without examining the remaining grounds for the remaining special appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)