Whether an immediate appeal against the exercise of a security right or the subrogation under Article 342 of the Civil Act can be asserted as the grounds for appeal against the substantive reasons such as the absence, extinguishment, etc. of a security right or secured claim (affirmative)

Articles 265, 273(1) and (2) of the Civil Execution Act, Article 200(2) of the Rules for Civil Execution

[Judgment of the court below]

Other Party

Daegu District Court Order 2008Ra42 dated May 16, 2008

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

The grounds of reappeal are examined.

Article 273(1) of the Civil Execution Act provides that "The exercise of a security right to a claim or other property right shall commence at the time when a document attesting the existence of such security right (in cases where a registration or a record is required with respect to the transfer of a right, a certified copy of such register or register) is submitted." Paragraph (2) of the same Article provides that "the same shall apply to cases where a person who has created a security right exercises a right to money or other things to be received by the person who has created the security right pursuant to Article 342 of the Civil Act," and Article 200(2) of the Civil Execution Act provides that "In an auction for exercising a security right to real estate for the exercise of a security right by exercising a security right or by exercising a right to exercise a security right pursuant to Article 273(1) and (2) of the Civil Execution Act, Article 265 of the Civil Execution Act provides that "the exercise of a security right or an immediate appeal based on subrogation under Article 342 of the Civil Act shall apply mutatis mutandis."

Therefore, in relation to the immediate appeal against the attachment and collection order of this case, which is the exercise of the right based on the subrogation of the other party who is the right to collateral security, the other party's claim claim, which is the ground for the re-appellant's assertion, is not secured by the right to collateral security, and the ground for set-off against the other party's claim against the re-appellant is not a legitimate reason for appeal, and the judgment of the court below which dismissed the immediate appeal of this case on the ground that it is not a legitimate reason for appeal

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.

Justices Lee Hong-hoon (Presiding Justice)