[1] The method of dissatisfied with a trial on an objection to execution

[2] In a case where a party fails to indicate as the Supreme Court the indication that the appeal is a special appeal and the appellate court does not indicate as to the appeal of the judgment permitted only to file a special appeal, the court which received the appeal shall take measures to take, and in such a case, whether the appellate court is an unincorporated court’s judgment (affirmative)

[3] Whether "property claims arising before the commencement of rehabilitation procedures for the debtor, which are rehabilitation claims prohibited from preservative measures, etc. under the general prohibition order, are limited to monetary claims (negative), and whether non-financial claims, such as contractual benefit claims, can also be subject to such non-financial claims (affirmative)

[4] The validity of preservative measures or compulsory execution based on rehabilitation claims that go against the general prohibition order (negative), and whether the decision to discontinue rehabilitation procedures becomes null and void even after the decision to discontinue rehabilitation procedures becomes final and conclusive later

[1] Article 15(1) of the Civil Execution Act provides that an immediate appeal may be filed against a judgment by the court of execution on the execution procedure only when special provisions exist. Article 17(1) of the same Act provides that an immediate appeal may be filed against a decision to revoke the execution procedure, a decision to dismiss or dismiss an objection against a disposition by the execution officer who has revoked the execution procedure, or a decision to order the execution officer to revoke the execution procedure. Thus, an immediate appeal may be filed in cases where a judgment on an objection against the execution constitutes such a judgment. However, in other cases, an immediate appeal may not be filed against a judgment on the objection, and only a special appeal under Article 449 of the Civil Procedure Act as applied mutatis mutandis pursuant to Article 23(

[2] Even if the parties did not indicate as the Supreme Court the indication that the special appeal is particularly special appeal and the appellate court did not indicate as to the appeal of the judgment permitted only to be special appeal, the court which received the appeal shall regard it as a special appeal and send the records of the trial to the Supreme Court. Even if the appellate court rendered a judgment as the appellate court, it eventually leads to the judgment without authority

[3] Rehabilitation claims prohibited from preservative measures, etc. according to the general prohibition order refer to "property claims arising before the commencement of rehabilitation procedures against the debtor" (Article 118 subparagraph 1 of the Debtor Rehabilitation and Bankruptcy Act), and rehabilitation claims do not take the principle of monetaryization and currentization, so such property claims are not limited to monetary claims, but may also be subject to non-financial claims such as contractual benefit claims.

[4] A preservative measure or compulsory execution based on a rehabilitation claim contrary to a comprehensive prohibition order is null and void, and there is no retroactive effect on the decision to discontinue the rehabilitation procedures. Thus, a preservative measure or compulsory execution, etc., which is null and void, is still null

[1] Articles 15(1), 16, 17(1), and 23(1) of the Civil Execution Act, Article 449 of the Civil Procedure Act / [2] Article 449 of the Civil Procedure Act / [3] Articles 45(1) and 118 subparag. 1 of the Debtor Rehabilitation and Bankruptcy Act / [4] Article 45(1) of the Debtor Rehabilitation and Bankruptcy Act

[1] Supreme Court Order 2005Da87 Decided October 31, 2005 / [2] Supreme Court Order 99Ma2081 Decided July 26, 199 (Gong199Ha, 1930), Supreme Court Order 2013Ma2042 Decided January 3, 2014 / [3] Supreme Court Order 89Meu4113 Decided April 11, 1989 (Gong1989, 794) / [4] Supreme Court Order 2014Da210159 Decided December 11, 2014

Medical Corporations, White Medical Foundation

Seoul High Court Decision 200Na1448 delivered on August 1, 200

Won Buddhist Corporation, an incorporated foundation

Suwon District Court Order 2015Kaga100103 dated August 28, 2015

The order of the court below is reversed, and the case is remanded to Suwon District Court.

1. First, we examine whether the instant case constitutes a reappeal.

Article 15(1) of the Civil Execution Act provides that an immediate appeal may be filed against a judgment by the court of execution on the execution procedure only where special provisions exist. Article 17(1) of the same Act provides that an immediate appeal may be filed against a decision to revoke the execution procedure, a decision to dismiss or dismiss an objection against a disposition by the execution officer who has revoked the execution procedure, or a decision to order the execution officer to revoke the execution procedure. Thus, an immediate appeal may be filed if a judgment on an objection against the execution constitutes such judgment, but in other cases, an immediate appeal may not be filed against a judgment on an objection, and only an objection may be filed as a special appeal under Article 449 of the Civil Procedure Act applied mutatis mutandis pursuant to Article 23(1) of the Civil Execution Act (see Supreme Court Order 205Do87, Oct. 31, 2005). In addition, even if a party did not indicate a special appeal as the Supreme Court, the court in receipt of such appeal shall be deemed a special appeal and shall be deemed to have been sent to the Supreme Court.

According to the records, the applicant filed an application with the Suwon District Court for the cancellation of the provisional disposition of this case by asserting that the provisional disposition order issued on June 2, 2015 by the Suwon District Court (hereinafter “the provisional disposition order of this case”) was invalid as it violated the comprehensive prohibition order. However, it can be seen that the applicant raised an objection against the notification that the non-acceptance of the application for the cancellation of provisional disposition was rejected by the non-acceptance of the applicant.

In light of the above, although it is inappropriate for the first instance court to consider the subject matter of objection by the applicant as the "non-acceptance disposition of the chief clerk", it can be deemed that the applicant raised an objection against the "disposition of the court of execution" which did not revoke the execution even though the applicant filed an application for revocation of execution, and as long as the first instance court dismisses such objection, it constitutes a decision to dismiss an objection as to the execution disposition, and thus, it shall not be subject to an immediate appeal.

Nevertheless, when an applicant submits a written appeal to the first instance court, the first instance court sent records to the Suwon District Court’s appeal department, which is not the Supreme Court, and the same court deemed this as an immediate appeal and rendered a judgment as the appellate court. This is ultimately a judgment of a court without authority, which violates Article 27(1) of the Constitution, and thus, the instant case is treated as a special appeal against the decision of the first instance court (see, e.g., Supreme Court Order 2010Ma1689, Feb. 21, 201; Supreme Court Order 2015Ma2115, Apr. 18, 2016).

2. Furthermore, the grounds of special appeal are examined.

A. The lower court acknowledged the following facts based on the records.

(1) On December 27, 2013, the respondent was awarded a contract with the applicant for the construction of the ○○○ Hospital Affiliated Corporation (hereinafter “instant construction”) on one parcel of land, ○○○○ Hospital Affiliated Corporation (hereinafter “instant construction”). On February 27, 2015, the respondent completed the instant construction around the end.

(2) Meanwhile, around February 9, 2015, the applicant entered into a lease agreement with the third debtor to lease part of the above building as a funeral hall.

(3) With respect to the payment of the instant construction cost with the respondent around February 25, 2015, the applicant paid KRW 200 million to the Hyundai Savings Bank’s payment on March 13, 2015, and KRW 500 million to the third obligor’s payment of the intermediate payment of the lease deposit, and on March 31, 2015, paid the remainder with the third obligor’s payment of the remainder of the lease deposit. The applicant decided to deliver the respondent a notice of assignment of the claim by February 26, 2015 for the unpaid construction cost of KRW 1.1 billion to the respondent.

(4) On May 13, 2015, the applicant filed an application for commencement of rehabilitation proceedings with Suwon District Court 2015 Ma10015. On May 19, 2015, the said court rendered a comprehensive prohibition order (hereinafter “instant comprehensive prohibition order”) prohibiting compulsory execution, provisional seizure, provisional disposition, or auction procedure for exercising the right of security against all rehabilitation creditors and rehabilitation secured creditors based on a rehabilitation claim or rehabilitation security right until a decision on the application for commencement of rehabilitation proceedings is made by applying Article 45(1) of the Debtor Rehabilitation and Bankruptcy Act (hereinafter “Rehabilitation Act”). On May 19, 2015, the said order was served on the applicant on the 21st of the same month.

(5) On May 22, 2015, the respondent filed an application for provisional disposition prohibiting the collection and disposal of claims against the applicant for a provisional disposition with regard to “the amount of money up to KRW 610 million out of KRW 1 billion that the third party obligor shall pay to the debtor under the lease deposit (the lease deposit) held by the funeral home lease contract of ○○○○ Hospital on February 9, 2015,” with the applicant’s third party obligor as the preserved right. On June 2, 2015, the Suwon District Court rendered the provisional disposition order to the effect as above to the effect that the provisional disposition was rendered on June 2, 2015.

(6) On June 30, 2015, the applicant filed an application with the Suwon District Court for the cancellation of the provisional disposition of this case by asserting that the right to be preserved on the provisional disposition of this case constitutes rehabilitation claims and the provisional disposition of this case is null and void since it violated the general prohibition order of this case. However, as seen earlier, the applicant raised an objection against the revocation of the provisional disposition of this case.

B. In accordance with the facts found above, the lower court dismissed the applicant’s objection on the execution, on the ground that the preserved claim in the instant provisional disposition decision is a performance claim seeking notification of the transfer of claims, and it cannot be deemed as a rehabilitation claim because it is difficult to view it as a claim that

C. However, the decision of the court below is difficult to accept in the following respect.

Rehabilitation claims prohibited from preservative measures, etc. by a comprehensive prohibition order mean "property claims arising from any cause before the commencement of rehabilitation procedures" (Article 118 subparagraph 1 of the Debtor Rehabilitation Act), and since rehabilitation claims do not take the principle of monetaryization and currentization, such property claims are not limited to monetary claims and may also be subject to non-financial claims, such as contractual benefit claims (see Supreme Court Decision 89Meu4113, Apr. 11, 1989).

Examining the aforementioned facts in light of the aforementioned legal principles, although the right to demand notification of the assignment of claims, which is the right to be preserved for the instant provisional disposition, is non- monetary claims, the right to demand notification of the transfer of claims, which is a non-financial claim, is directly connected to the reduction of the debtor's property, and thus constitutes a "property claim" as it is directly connected with the reduction of the debtor's property, and thus constitutes a rehabilitation claim, since the instant provisional disposition was made before the commencement of rehabilitation procedures. Thus, the execution court should have revoked the execution upon the applicant's

Nevertheless, the lower court’s rejection of an objection on the enforcement of the applicant’s objection violates the applicant’s right to a trial according to lawful procedures, thereby adversely affecting the conclusion of the trial.

In addition, a preservative measure or compulsory execution based on a rehabilitation claim against a comprehensive prohibition order is null and void, and there is no retroactive effect on the decision to discontinue the rehabilitation procedures. Therefore, even if the decision to discontinue the rehabilitation procedures is confirmed ex post facto, it is still invalid (see Supreme Court Decision 2014Da210159, Dec. 11, 2014, etc.).

3. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)