In a case where the appellate court sent the case to the Supreme Court despite the fact that the reappeal was filed against the appellate court's ruling on the immediate appeal of indirect compulsory performance but the appellate court's reason for rejection was not submitted within the fixed period, etc., the appellate court should dismiss it.

Articles 15 and 261 of the Civil Execution Act

[Plaintiff-Appellant] 2004Ma505 dated September 13, 2004 (Gong2004Ha, 1794)

Creditors

The debtor 1 and one other

Seoul High Court Order 2006Ra1346 dated January 28, 2008

The reappeal shall be dismissed.

In cases of an immediate appeal under the Civil Execution Act, the reasons therefor shall be specified in a written appeal, as prescribed by the Supreme Court Regulations, and in cases where the reasons for an appeal are not specified in a written appeal, a written reason for the appeal shall be submitted to the court of original judgment within ten days from the date on which the written appeal is submitted, and in principle, the

Therefore, even if a appellant fails to submit a written reason for an immediate appeal within a fixed period or a written reason for an immediate appeal was submitted, when the entry thereof is in violation of the Supreme Court Regulations, or when it is evident that an immediate appeal is unlawful and its costs cannot be corrected, the court of original judgment shall dismiss it by its ruling (Article 15(3), (4), (5), and (7) of the Civil Execution Act), and where the court of original judgment has sent the case without dismissal despite the dismissal of the immediate appeal, the court of appeal shall immediately dismiss it, and this legal principle also applies to a reappeal under the Civil Execution Act (see Supreme Court Order 2004Ma505, Sept. 13, 2004, etc.). Since an immediate appeal (see Supreme Court Order 261(2) of the Civil Execution Act) against a decision of indirect compulsory performance is also governed by the Civil Execution Act, the provisions on the immediate appeal and reappeal under the Civil Execution Act as to the procedure for a reappeal against a decision of appellate court on such immediate appeal shall be applied mutatis mutandis.

According to the records, the re-appellant filed a reappeal on January 28, 2008 against the judgment of the court below that dismissed an immediate appeal against the decision of dismissal of the first instance application for indirect compulsory performance, and did not state the grounds for reappeal on February 5, 2008. The court below, which did not submit the grounds for reappeal, sent the case to the Supreme Court on February 14, 2008, for which 10 days have not passed since the submission period of the grounds for reappeal was not filed, and the re-appellant did not submit the written grounds for reappeal to the court below until the expiration of the period for reappeal. In this case, the court below did not send the case as the Supreme Court, but did not immediately dismiss the reappeal by decision pursuant to Article 15(5) of the Civil Execution Act, and as long as the court below did not take such measures and sent the case, it is reasonable to dismiss the reappeal unless the written grounds for reappeal was submitted by the second instance court until the expiration of the period for reappeal.

Therefore, the reappeal is dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)