Whether an appeal may be filed in addition to a special appeal against a decision to suspend compulsory execution under Article 46(2) of the Civil Execution Act (negative)

[1] Articles 449(1) and 500(3) of the Civil Procedure Act, Articles 46(2) and 275 of the Civil Execution Act

Supreme Court Order 64Ma912 dated December 9, 1964 (No. 12-2, 193) 81Ma292 dated August 21, 1981 (No. 29-2, 280) Supreme Court Order 2001Ga4 dated February 28, 2001 (Gong2001Sang, 777)

MSPPPPPPP (Law Firmcheon, Attorneys Shin-soo et al., Counsel for the plaintiff-appellant-appellant)

Seoul Liber Co., Ltd.

Seoul High Court Order 2003Kaga569 dated July 24, 2003

The special appeal is dismissed.

1. Article 449(1) of the Civil Procedure Act provides that “Special appeal may be made only in the Supreme Court on the ground that there exists a violation of the Constitution that affected the conclusion of the judgment with respect to a ruling or an order or order that cannot be appealed, or that the judgment on the violation of the Constitution or the Act, which is the premise of the judgment, is unreasonable.”

On the other hand, the former part of Article 46(2) of the Civil Execution Act is deemed to have legally well-founded grounds, and when there is a vindication of the facts, the court of the lawsuit may order the suspension of compulsory execution with or without having the security furnished, not later than the time when the judgment is rendered, upon the application of a party. "This provision provides that the court of the lawsuit shall order the suspension of compulsory execution with or without having the security furnished. This provision applies mutatis mutandis to the auction procedure to enforce the security right by Article 275 of the same Act. Thus, with respect to the decision of the suspension of compulsory execution, an appeal may not be filed by analogical application of Article 500(3) of the Civil Procedure Act (see, e.g., Supreme Court Order 201Da44, Feb. 28, 2001). It is only a special appeal to

2. However, inasmuch as the court below acknowledged that the grounds alleged as the grounds for the claim for the cancellation of the registration of the establishment of a mortgage in this case against the other party's application for the cancellation of the registration of the establishment of a mortgage in this case were legally reasonable, and further decided to suspend compulsory execution by considering that there was a vindication of such facts, the court below accepted them even though there is no legal grounds for the grounds for the claim for cancellation of the registration of the establishment of a mortgage in this case and there is no vindication of such facts, and further, it cannot be viewed as a ground for objection or special appeal on the ground that the special appellant under the order of the court below was found to have received them, and there was a delay in acquiring the ownership of the real estate by paying the price after being awarded the real estate in this case at the auction procedure and being designated the payment date, and thus there was an obstacle to the exercise of the property right, and therefore, it seems that the constitutional right of the special appellant (the right to be tried promptly from the auction court to the date of the payment by the court of auction) was unconstitutional or unlawful, or that affected the judgment.

In addition, by abusing the other party’s right to file a lawsuit against the other party’s application for the suspension of compulsory execution, the court below’s assertion that the court below violated the public welfare obligations for the exercise of property rights by abusing the right to file a lawsuit, and that the court below’s order would be contrary to the ideology of civil procedure, is merely the purport of arguing that the grounds alleged as the ground for the request for cancellation of the

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

Justices Yoon Jae-chul (Presiding Justice)