In a case where the court of appeal has to dismiss an immediate appeal under the Civil Execution Act, but the case was sent without dismissal, the measure to be taken by the court of appeal (=Dismissal) and whether the above legal principle is equally applied to a reappeal under the Civil Execution Act (affirmative)

Article 15 of the Civil Execution Act

Supreme Court Order 2004Ma505 Decided September 13, 2004 (Gong2004Ha, 1794) Supreme Court Order 2005Ma59 Decided May 19, 2005 (Gong2005Ha, 1107)

The debtor

Creditors

Busan District Court Order 2005Ra176 dated September 15, 2005

The reappeal shall be dismissed.

1. The appellate court under the Civil Procedure Act applies mutatis mutandis to the appellate court (Articles 443, 408, and 146 of the Civil Procedure Act). Thus, in the case of an immediate appeal under the Civil Procedure Act, the reasons for the appeal shall be clearly made before the decision on the appellate court is made. However, in the case of an immediate appeal under the Civil Execution Act, the reasons for the appeal shall be clearly made when filing an application for the immediate execution and the prevention of abuse thereof shall be clearly made. The appellate court shall, in principle, submit a written reasons for the appeal to the court of original judgment within 10 days from the date on which the written appeal is filed (Article 13 of the Regulations on Civil Execution). In this case, the reasons for the immediate appeal shall be stated as follows: when the appellant fails to submit a written reason for the immediate appeal within a specified period, or when it is presented a written reason for the appeal, and when it is evident that such immediate appeal cannot be corrected or corrected, the appellate court shall dismiss such immediate appeal (Article 15(3)4 and 50.2 of the Civil Execution Act shall also be dismissed by its ruling.

2. According to the records, the re-appellant filed a reappeal against the order of the court below on October 5, 2005 and did not state the grounds for reappeal in the reappeal, and did not submit the reappeal within 10 days thereafter, the court below sent the case to the Supreme Court. The re-appellant filed the reappeal as the title "the report was filed only on October 19, 2005 (the notification of receipt of the reappeal was submitted separately on October 28, 2005, after receiving the notification of receipt of the reappeal)," and the court below should dismiss the reappeal by its ruling pursuant to Article 15 (5) of the Civil Execution Act as soon as it did not send the case to the Supreme Court, and it is reasonable for the Supreme Court to dismiss the reappeal if it sent the case without dismissing it.

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

Justices Kim Yong-dam (Presiding Justice)