In case where a junior administrative officer, etc. of the first instance court refuses to grant an execution clause and the records of trial are sent to the higher court, whether the objection against the refusal is legitimate (negative)

According to Article 478 (2) of the Civil Procedure Act, the execution clause shall be granted by a junior administrative officer, etc. of the first instance court, but when the records of trial are in the higher court, a junior administrative officer, etc. of the first instance court. Thus, the junior administrative officer, etc. of the first instance court shall lose the authority to grant the execution clause after the proceedings of the court are completed and the records of trial are sent to the higher court by appeal. Therefore, an objection against the refusal to grant the execution clause made by a junior administrative officer, etc. of the first instance court shall be unlawful, barring any special circumstances, that the court, etc. which rejected the

Articles 209 and 478(2) of the Civil Procedure Act

Re-appellant

Seoul District Court Order 99Ra164 dated October 16, 1999

The reappeal is dismissed.

We examine the grounds for reappeal.

According to Article 478 (2) of the Civil Procedure Act, the execution clause shall be granted by a junior administrative officer, etc. of the first instance court, but when the records of trial are in the higher court, a junior administrative officer, etc. of the first instance court. Thus, the junior administrative officer, etc. of the first instance court shall lose the authority to grant the execution clause after the proceedings of the court are completed and the records of trial are sent to the higher court by appeal. Therefore, an objection against the refusal to grant the execution clause made by a junior administrative officer, etc. of the first instance court shall be unlawful as there is no benefit of the application, unless there is any special reason that the

According to the reasoning of the order of the court below, the applicant filed an appeal on June 4 of the same month against the rejection of execution clause on May 26, 199 after the applicant filed an application for granting an execution clause to a junior administrative officer, etc. of the same court on the basis of the judgment in the case of a request for a trial for counterargument report 9Kahap91 with the Seoul District Court Branch 9Kahap91, but filed an objection against the rejection of the execution clause on the 27th of the same month. However, the court below rejected the appeal on the 28th of the same month. Meanwhile, the applicant filed an appeal on May 12 of the same year with respect to the case of a request for a counterargument report, which was received by the appellate court which was the appellate court which was the first instance court under Article 209 of the Civil Procedure Act. Since the applicant's objection to the disposition such as a junior administrative officer, etc. with the authority to issue an order for correction of the disposition of the execution clause, there is no room for correction if the junior administrative officer, etc. loses the execution clause to grant the same kind of the execution clause.

In light of the records, the judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the objection against the refusal of the execution clause and the interest in litigation as alleged in the reappeal.

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

Justices Yoon Jae-sik (Presiding Justice)